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https://archive.org/details/questionofaborigOOsnow 


THE QUESTION OF 
ABORIGINES 


IN THE LAW AND PRACTICE OF NATIONS 


INCLUDING 
A COLLECTION OF AUTHORITIES 
AND DOCUMENTS 


WRITTEN AT THE REQUEST OF THE DEPARTMENT OF STATE 


BY 


ALPHEUS HENRY SNOW 


AUTHOR OF ‘‘THE ADMINISTRATION OF DEPENDENCIES, ‘‘CONSIDERATIONS IN 
THE INTEREST OF THE PEOPLE OF THE PHILIPPINE ISLANDS,” ‘“‘ THE 
AMERICAN PHILOSOPHY OF GOVERNMENT.” 


G. P. PUTNAM’S SONS’ 

NEW YORK AND LONDON 

Tbe Knickerbocker Press 
1921 


Copyright, ro2r 
by 
G. P. Putnam’s Sons 


Printed in the United States of America 


PREFATORY NOTE 


HE following is submitted to the Department of 
State, pursuant to a request made by letter dated 
April 29, 1918, that the author should “undertake 

the task of collecting, arranging, and, so far as [he] may 
deem necessary, editing the authorities and documents 
relating to the subject of ‘Aborigines in the Law and 
Practice of Nations.’ ”’ 

The author has discovered no treatise on the ques- 
tion, nor even any chapters in any book on inter- 
national law or the law of colonies, to serve as a model 
or guide. He has therefore been compelled to develop 
the subject and arrange the authorities and documents 
according to his own judgment. 


DECEMBER 20, 1918. 


iil 


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(q iy ; , te Pen eh hin. Cee ae ie: : 
, : aPi bev q vi us Ne Uae i get Hi Pipa) Ks oy a "7 J 
id p; ' ey ik wal : ; } Mee vat’ f 
ae MOT Ad)) hi ue tah a hh ny) sect ph alta Li a aie aay 
¥ si iy at ny Nd wey : : i - ¥ 
ah COAT CUE Tat ahh ie Bit? ils ih #2) ee Ae 
ah | ; Wy Sit thr \ ; Vn 
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em Bs i eo Ni) RIE eels OA aR: 
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‘ ‘ iy o ay A A Hf ; : 


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CONTENTS 


CHAPTER 
I.—DEFINITION OF ABORIGINES : f : : : 
II.—HIsTORICAL INTRODUCTION 


III.—ABORIGINES AS THE WARDS OF THE STATE WHICH EXER- 
CISES SOVEREIGNTY OVER THEM 


IV.—THE RELATION BETWEEN THE POWER OVER ABORIGINAL 
TRIBES AND THE POWER OVER COLONIES GENERALLY 


V.—THE RELATION BETWEEN THE POWER OVER ABORIGINAL 
TRIBES AND THE POWER OVER COLONIES GENERALLY 
(CONTINUED) . 


VI.—TuHE RIGHTS OF ABORIGINES AS RESPECTS THE LAND 
INHABITED BY THEM 


VII.—THE RIGHTS OF ABORIGINES TO PERSONAL LIBERTY AND 
PERSONAL PROPERTY 


VIII.—Tue DuvTIES oF CIVILIZED STATES AS GUARDIANS OF 
ABORIGINES 


I1X.—THE LEGAL EFFECT OF AGREEMENTS BETWEEN CIVILIZED 
STATES OR THEIR CITIZENS AND ABORIGINAL TRIBES 


X.—THE FOUNDING OF THE INDEPENDENT STATE OF THE 
CONGO AND ITS EFFECT ON THE LAW OF NATIONS 
REGARDING ABORIGINES . 


XI.—THE INSTITUTION BY THE BERLIN-AFRICAN CONFERENCE 
OF A MIDDLE-AFRICAN ZONE OF INTERNATIONAL JURIS- 
DICTION, AND THE EFFECT OF THIS ACTION ON THE LAW 
OF NATIONS REGARDING ABORIGINES 


XII.—THE FAILURE OF THE PROPOSALS IN THE BERLIN-AFRICAN 
CONFERENCE FOR NEUTRALIZATION AND SURVEILLANCE 
OF THE MIDDLE-AFRICAN ZONE OF INTERNATIONAL 
JURISDICTION AS AFFECTING THE DEVELOPMENT OF THE 
LAW OF NATIONS REGARDING ABORIGINES 


XIII.—INTERNATIONAL ACTION SINCE THE BERLIN-AFRICAN 
CONFERENCE, AFFECTING THE LAW OF NATIONS 
REGARDING ABORIGINES . 


XIV.—THE DoOcTRINE OF “INTERVENTION FOR HUMANITY” 
AND ITS EFFECT ON THE DEVELOPMENT OF THE LAW OF 
NATIONS REGARDING ABORIGINES 


XV.—THE ESTABLISHMENT OF ‘‘ THE TRIPLE PRINCIPLE” BY 
THE ACTION OF INTERNATIONAL CONFERENCES IN THE 
CASE OF MOROCCO, AND THE EFFECT OF THIS ACTION 
ON THE DEVELOPMENT OF THE LAW OF NATIONS 
REGARDING ABORIGINES . 


PAGE 


31 


56 


84 
114 


136 
174 


IgI 


212 


239 


256 


282 


311 


336 


ne oie Hele 
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TOE ksh 
{ ee ry 


THE QUESTION OF ABORIGINES 


THE QUESTION OF ABORIGINES IN 
THE LAW AND PRACTICE OF 
NATIONS 


WRITTEN AT THE REQUEST OF THE DEPARTMENT OF 
STATE, I9I19 


Reprinted by permisston 


CHAPTER I 


DEFINITION OF ABORIGINES 


discover, no definition of the word ‘“‘aborigines’’ 
as a term of the law and practice of nations has 
been made by any text-writer of recognized standing, 
or by any international body whose usage would de- 
termine its meaning. It therefore becomes necessary to 
formulate such a definition from an examination of the 
meaning attached to the word by lexicographers and 
by a study of the context of public documents of 
recognized authority in the law and practice of nations 
in which the word is used. 
The following definition, formulated in that manner, 
is adopted for the purposes of this report: 
Aborigines are the members of uncivilized tribes 
which inhabit a region at the time a civilized State 
extends its sovereignty over the region, and which 


3 


S far as the author of this report has been able to 


4 The Question of Aborigines 


have so inhabited from time immemorial; and also the 
uncivilized descendants of such persons dwelling in 
the region. 

As a term of the law and practice of nations, ‘‘abo- 
rigines’”’ is primarily a term of that division of the gen- 
eral public law which is not strictly national or strictly 
international, and which is concerned with the relations 
between a State recognized as one of the civilized States 
and uncivilized tribes under its sovereignty. Abo- 
rigines are distinguished from ‘‘colonists,” the latter 
term including the citizens of civilized States who settle 
in the region. The relations of aborigines with each 
other, with the colonists, and with the colonizing State 
are necessarily subject to a special régime established 
by the colonizing State for the purpose of fitting the 
aborigines for civilization, and opening the resources of 
the land to the use of the civilized world. All civilized 
States which assume sovereignty over regions inhabited 
by aborigines undertake a civilizing work which, while 
varying in its details, is identical in its general nature 
and in the fundamental principles to be applied. Hence 
the dealings of individual civilized States with abo- 
rigines under their respective sovereignties are matters 
of common interest to all nations, and the law and 
practice of nations properly concerns itself with the 
common and international aspects of such national 
action. 


c¢ 


(a) Meaning of the word as shown by an examination of 
lexicons 


The word “‘aborigines’”’ is of course the Latin word 
aborigines taken over without change into the English 
language. The history and meaning of the word in 
Latin are given in the Latin-English Lexicon by E. A. 
Andrews as follows: 


Definition of Aborigines 5 


The Aborigines, the nation which, previous to historical 
record, descended from the Apennines, and advancing from 
Carseoli and Reate into the plain drove out the Siculi, the 
ancestors of the Romans. To them, as not of Greek origin, 
belongs the un-Greek element in the Latin language. Cf. 
Mull. Etrusk. 1.16 sq.; Cic. Rep. 2.3; Sall. Cat. 6. . 
Pliny also uses it as an appellative, . . . the original 
inhabitants, ancestors, 4.21.36. Its etym. is doubtful. It 
is commonly derived from ab-origo; but, acc. to Aur. Victor, 
it is either of Greek origin, from &xé and éey, those who came 
from the mountains, or fr. ab-errare, the wanderers; which 
last derivation Fest. also, p. 16, approves. 


Webster’s Dictionary thus defines the word: 


Aborigines (Lat. Aborigines, from ab and origo, especially 
the first inhabitants of Latium, those who originally (ab 
origine) inhabited Latium or Italy). The first inhabitants 
of a country. 


The same dictionary defines ‘‘aboriginal,’’ used as a 
substantive, as ‘‘an original inhabitant; one of the abo- 
rigines’”; and the adjective “‘aboriginal’’ as meaning 
‘first; original, primitive; as the aboriginal tribes of 
America.”’ 

The Century Dictionary thus defines “‘aborigines’’ : 


The first inhabitants of a country, applied especially to 
the aboriginal inhabitants of Latium, the ancestors of the 
Roman people; . . . the primitive inhabitants of a coun- 
try; the people living in a country at the earliest period of 
which anything is known. 


The same dictionary defines the adjective ‘‘aborigi- 
nal” as “‘pertaining to aborigines; hence, primitive, 
simple, unsophisticated.’’ 

The following are meanings applied to the word and 
some of its derivatives by the Oxford Dictionary: 


6 The Question of Aborigines 


Aborigines. A purely Latin word, applied to those who 
were believed to have been the inhabitants of a country 
ab origine, i. e., from the beginning . 

1. The original inhabitants of a country; originally, the 
race of the first possessors of Italy and Greece, afterwards 
extended to races supposed to be the first or original occu- 
pants of other countries. 

2. The natives found in possession of a country by 
Europeans who have gone thither as colonists. 

Aborigen, Aborigin, a form occasionally occurring as a 
singular to aborigines, which has no singular in L. . 

But the tendency is to treat aborigines as a purely Eng. 
word, and make the singular aborigine. 

Aboriginal, A, adj. 1. First or earliest so far.as history or 
science gives record; primitive; strictly native; indigenous. 
Used both of races and natural features of various lands. 

2. (Spec.) Dwelling in any country before the arrival of 
later (European) colonists. 

3. Of or pertaining to aborigines, to the earliest known 
inhabitants, or to native races. 

B. subs. (with pl.). An original inhabitant of any land, 
now usually as distinguished from subsequent European 
colonists. 

Aboriginalism. The due recognition of native races. 


The New Standard Dictionary (ed. of 1913) gives the 
following definitions: 


Aborigines. The original of earliest known inhabitants 
of acountry. . . . L. the primeval Romans. 

Aboriginal. Of or pertaining to the aborigines; native 
to the soil; savage in respect of culture; indigenous; primi- 
tive; hence simple, unsophisticated. 

Aboriginalism. The doctrine that savage races may be 
civilized, and hence should be respected. 

Aborigine (rare). One of the aborigines. 

Aborigen. Singular form of aborigines, which in Latin 


Definition of Aborigines 7 


has no singular; assumed from regarding the word as 
English, and now often used. 


(b) Meaning of the word as shown by official documents 


From the foregoing survey of the work of the lexi- 
cographers it is evident that the lexicons furnish little 
aid toward the formulation of a scientific definition of 
aborigines as a term of the law and practice of nations. 
It therefore becomes necessary to study the usage of 
the word in legal and political literature. Such a study 
apparently reveals that the establishment of the word 
as a legal and political term with a precise meaning 
occurred in the period between 1835 and 1837, under 
the following circumstances: 

Through the efforts of a series of reform organizations 
in Great Britain, the first of which began its operations 
in 1791, the African slave trade was prohibited to the 
citizens of Great Britain by act of Parliament in 1807, 
and in 1833 African slavery was abolished in the British 
colonies. During this long period of agitation these 
reformers had been led to study the whole question of 
the contact of the civilized States with the uncivilized 
races. Great Britain was exercising sovereignty over 
regions inhabited by uncivilized races in Canada, South 
America, Africa, Australia, New Zealand, and the 
islands of the Pacific. Other European States, the 
United States, and the States of South America exer- 
cised similar sovereignty. In spite of the varying de- 
tails in dealing with each of the uncivilized tribes, it 
was perceived that the problem was one of the contact 
of civilization with uncivilization; that there were cer- 
tain general principles universally applicable, and that 
the question was in some respects and to some extent 
one of common interest to all nations. 


8 The Question of Aborigines 


Influenced by this broader aspect of the question, a 
part of the anti-slavery group in 1835 separated itself 
from the rest, and formed themselves into a society 
which called itself the British and Foreign Aborigines 
Protection Society, the remainder continuing their gen- 
eral anti-slavery propagandist work as a society calling 
itself the British and Foreign Anti-Slavery Society. 
These two societies kept their separate identity and 
continuously carried on their work on their separate 
lines until 1909, when they merged into one, by the 
name of the British Anti-Slavery and Aborigines Pro- 
tection Society, which still exists. 

By the influence of the Aborigines Protection Society 
the question of aborigines in the law and practice of 
nations was agitated in 1835 in the British House of 
Commons, and largely through the influence of Thomas 
Fowell Buxton, who was a member of the House of 
Commons and one of the leaders of the society, a select 
committee on the subject was appointed. After taking 
a large amount of evidence, this committee, which re- 
ceived the name of the Select Committee on Aboriginal 
Tribes, made its report in 1837. Gladstone was a mem- 
ber of the committee, and it is said that he drafted the 
report. 

It was by this report, apparently, that the word ‘‘abo- 
rigines’’ received its definite sanction as a term of the 
law and practice of nations. In judicial decisions and 
diplomatic and legislative documents prior to that 
time the word is used sporadically and in a sense not 
invariably, though generally confined to uncivilized 
persons indigenous to the soil of a certain region. This 
report clearly confined it, as a legal term, to this sense. 

By the terms of the resolution of the House of Com- 
mons the committee was authorized “‘to consider what 
measures ought to be adopted with regard to the native 


Definition of Aborigines 9 


inhabitants of countries where British settlements are 
made, and to the neighboring tribes, in order to secure 
to them the due observance of justice and the protec- 
tion of their rights, to promote the spread of civilization 
among them, and to lead them to the peaceful and 
voluntary reception of the Christian religion.’’ 

In the second paragraph of the report it is said: 


The extent of the question will be best comprehended by 
taking a survey of the globe, and by observing over how 
much of its surface an intercourse with Britain may become 
the greatest blessing, or the heaviest scourge. It will 
scarcely be denied in word that, as an enlightened and 
Christian people, we are at least bound to do to the inhabi- 
tants of other lands, whether enlightened or not, as we 
should in similar circumstances desire to be done by; but 
beyond the obligations of common honesty, we are bound 
by two considerations with regard to the uncivilized: 
First, that of the ability we possess to confer upon them the 
most important benefits; and secondly, that of their ina- 
bility to resist any encroachments, however unjust, how- 
ever mischievous, which we may be disposed to make. 
The disparity of the parties, the strength of the one and 
the incapacity of the other to enforce the observance of 
their rights, constitutes a new and irresistible appeal to 
our compassionate protection. 


The committee recognized that the question of abo- 
rigines was not a mere national one, but was one com- 
mon to all colonizing nations, and virtually one of 
drawing a just line between that which is due to abo- 
rigines as human beings and original occupants of the 
soil on the one part and that which is due to the civi- 
lized world on the other part, and especially of pre- 
venting abuses of power by civilized States and their 
citizens as respects the uncivilized peoples. Thus it is 
said: 


10 The Question of Aborigines 


It is not too much to say that the intercourse of Europe- 
ans in general, without any exception in favor of the sub- 
jects of Great Britain, has been, unless when attended by 
missionary exertions, a source of many calamities to un- 
civilized nations. Too often, their territory has been 
usurped, their property seized; their numbers diminished, 
their character debased, the spread of civilization impeded. 
European vices and diseases have been introduced among 
them, and they have been familiarized with the use of our 
most potent instruments for the subtle or violent destruc- 
tion of human life, viz., brandy and gunpowder. . 

It is difficult to form an estimate of the less civilized 
nations liable to be influenced for good or for evil by contact 
and intercourse with the more civilized nations of the earth. 
It would appear that the barbarous regions likely to be 
more immediately affected by the policy of Great Britain 
are the south and west of Africa, Australia, the islands of 
the Pacific Ocean, a very extensive district of South America 
at the back of the Essiquibo settlement between the rivers 
Orinoco and Amazon, with the immense tract which con- 
stitutes the most northerly part of the American con- 
tinent and stretches from the Pacific to the Atlantic 
Ocean. 


Throughout the first part of the report, which is a 
statement of the facts relating to the abuse of civilized 
power, brought out by the evidence taken by the com- 
mittee, the word ‘‘aborigines’’ is not used. Where it 
would naturally be expected, the words ‘“‘savages,”’ 
‘barbarous peoples,’ ‘‘heathens,’’ ‘‘uncivilized na- 
tions,’’ ‘‘tribes,’’ ‘‘native inhabitants,”’ or ‘‘natives’’ are 
used. The word ‘‘aborigines”’ first occurs in the heading 
of the second part of the statement of facts. This 
heading is as follows: 


Effects of fair dealing, combined with Christian instruc- 
tion, on aborigines. 


Definition of Aborigines II 


Under this heading, the opening statement reads: 


In the foregoing survey we have seen the desolating 
effects of the association of unprincipled Europeans with 
nations in a ruder state. There remains a more gratifying 
subject to which we have now to direct our attention—the 
effect of fair dealing and of Christian instruction upon 
heathens. The instances are, unhappily, less numerous 
than those of an opposite character, but they are not less 
conclusive; and in reviewing the evidence before us, we 
find proof that every tribe of mankind is accessible to the 
remedial process and that it has actually been partially 
applied and its benefits experienced in every quarter of the 
world; so that, the main feature of the case before us being 
the ravages caused by Europeans, enough has been inci- 
dentally disclosed to show that those nations which have 
been exposed to our contamination might, during the same 
period, have been led forward to religion and civilization. 
Independently of the obligations of conscience to impart 
the blessings we enjoy, we have abundant proof that it is 
greatly for our advantage to have dealings with civilized 
men rather than with barbarians. Savages are dangerous 
neighbors and unprofitable customers, and if they remain 
as degraded denizens of our colonies they become a burden 
upon the State. 

We have next to express our conviction that there is but 
one effectual means of staying the evils we have occasioned, 
and of imparting the blessings of civilization, and that is 
the propagation of Christianity, together with the preserva- 
tion, for the time to come, of the civil rights of the natives. 

We have seen that a mere acquaintance with civilized 
men by no means prepares savages to receive Christianity, 
and that kind of civilization which alone can be advan- 
tageous to them or ourselves. . . . We further find, in 
the evidence before us, that benevolent attempts have been 
made to instruct savages in the arts of civilized life, for 
the purpose of improving their condition and gradually 
preparing them for the truths of the Gospel, and that these 


12 The Question of Aborigines 


attempts have been signally unsuccessful. . . . So com- 
plete, indeed, has been the failure of the merely civilizing 
plan with various tribes of Indians, that intelligent Ameri- 
cans have been led to adopt the conclusion that it is neces- 
sary to banish the Indians from the neighborhood of the 
white population, on the supposition that they are not 
capable of being reclaimed or elevated into a civilized or 
well-ordered community. 

This was not the opinion of William Penn, whose con- 
duct toward the Indians has been deservedly held up as a 
model for legislators, and who “notwithstanding he pur- 
chased their lands” by an equitable treaty, ‘“‘did not desire 
their removal,’’ but ‘“‘admitted them to full participation in 
the benefit and protection of the laws,’’ and who also took 
pains to promote their religious instruction, and to render 
the intercourse with their white brethren beneficial to them. 
That the good which he contemplated has been frustrated 
by many untoward circumstances we are aware, but we 
do not therefore doubt the feasibility of producing a per- 
manent impression upon uncivilized men. We consider 
that the true plan to be pursued is that which we find 
recommended by the Church Missionary Society, in their 
instructions to two of their emissaries: 

“In connection with the preaching of the gospel you will 
not overlook its intimate bearing on the moral habits of a 
people. . . . Seek to apply it to the common occupation 
of life; and instead of waiting to civilize them before you 
instruct them in the truths of the gospel, or to convert 
them before you aim at the improvement of their temporal 
condition, let the two objects be pursued simultaneously.” 


Following the statement of facts the committee in- 
serted its ‘conclusions.’ Holding that its investigation 
had proved that ‘‘the effect of European intercourse 
had been, upon the whole, a calamity on the heathen 
and savage nations,”’ it urged in eloquent language that 
Great Britain should make itself a leader in the move- 


Definition of Aborigines 13 


ment to make the contact between the civilized and 
the uncivilized races a benefit to both and a means of 
increasing the general civilization and welfare. 

After the ‘‘conclusions,’’ the committee considered 
under the heading of: “suggestions” the fundamental 
principles of the just relationship between civilized and 
uncivilized races and the methods and processes suitable 
for carrying these principles into effect. It is in the 
text of these “‘suggestions’’ (which in the nature of 
things must have been the last paper drafted by the 
committee), that the word “‘aborigines’”’ is used as a 
technical term. It would appear that the committee, 
while unable to agree in accepting that term during the 
main part of its deliberations, had found it so necessary 
to have a generic term applicable to the uncivilized 
natives in the colonies of all civilized States, that they 
finally agreed to sanction and adopt the word “‘abo- 
rigines’”’ for this purpose. 

The word occurs in the opening paragraph of the 
‘suggestions,’ which reads as follows: 


Having thus adverted to some of the more remarkable of 
those incidents by which the intercourse between the 
British colonies and the aborigines in their vicinity 
have been characterized, it remains to consider how the 
recurrence of similar calamities can be most effectually 
averted. 

It is obviously difficult to combine in one code rules to 
govern our intercourse with nations standing in different 
relationships with us. Some are independent communities; 
others are, by the nature of treaties or the force of circum- 
stances, under the protection of Great Britain, and yet 
retain their own laws and usages; some are our subjects, 
and have no laws but such as we impose. 

To this variety in circumstances must be added a variety 
as great in their moral and physical condition. They are 


14 The Question of Aborigines 


found in all grades of advancement, from utter barbarism to 
semi-civilization. 

To propose regulations which shall apply to our own 
subjects and to independent tribes, to those emerging from 
barbarism and to those in the rudest state of nature, is a 
task from which your committee would shrink, were it 
not that all the witnesses, differing as they do upon almost 
every other topic, unite in ascribing much of the evil to 
the uncertainty and vacillation of our policy. Your com- 
mittee can not too forcibly recommend that no exertion 
should be spared and no time lost in distinctly settling and 
declaring the principles which shall henceforth guide and 
govern our intercourse with those vast multitudes of un- 
civilized men who may suffer in the greatest degree or in 
the greatest degree be benefited by our intercourse. 

The regulations which we would suggest for that purpose 
are either general or special; that is, they either extend to 
all parts of the globe in which we are brought into contact 
with uncivilized tribes or they apply to the particular case 
of some one settlement. In the first place, therefore, we 
will advert to these general regulations which we have to 
suggest, and which may be reduced under nine separate 
heads. 


The following extracts from the text of these nine 
general principles will illustrate the committee’s usage 
of the term ‘“‘aborigines’’: 


The protection of the aborigines should be considered as 
a duty particularly belonging and appropriate to the execu- 
tive government as administered either in this country or 
by the governors of the respective colonies. . 

The settlers in almost every colony, having either dis- 
putes to adjust with the native tribes, or claims to urge 
against them, the representative body is virtually a party, 
and therefore ought not to be a judge in such controversies. 
Or if the members of the colonial legislature are not chosen 
by the people, but selected by the government, there is still 


Definition of Aborigines 15 
a similar objection to their interference with the aborigines. 


Whatever may be the legislative system of any colony, 
we therefore advise that, as far as possible, the aborigines 
be withdrawn from its control. 

In the formation of any new colonial constitution, or in 
the amendment of any which now exist, we think that the 
initiative of all enactments affecting the aborigines should 
be vested in the officer administering the government; that 
no such law should take effect until it has been expressly 
sanctioned by the Queen. . 

Your committee would take occasion to observe that, so 
far as regards that portion of the aborigines who may in- 
habit the country beyond our colonial frontiers, the pro- 
vincial legislatures have no authority to make enactments; 
and thus far, therefore, there will be less difficulty in retain- 
ing the government of our relations with the aborigines in 
more impartial hands. . 

All contracts for service into which any of the aborigines 
may enter with any of the colonists should be expressly 
limited in their duration, to a period which should, in no 
case, exceed 12 months. . 

So far as the lands of the aborigines are within any 
territories over which the dominion of the Crown ex- 
tends, the acquisition of them by her Majesty’s subjects, 
upon any title of purchase, grant, or otherwise, from 
their present proprietors, should be declared illegal and 
void. . 

When the British law is violated by the aborigines within 
the British dominions, it seems right that the utmost in- 
dulgence compatible with a due regard for the lives and 
property of others should be shown for their ignorance and 
prejudices. . 

In the case of offences committed beyond the frontiers, 
British subjects are amenable to colonial courts—the abo- 
riginesarenot. . . . It would, therefore, on every account 
be desirable to induce the tribes in our vicinity to concur in 
devising some simple and effectual method of bringing to 


16 The Question of Aborigines 


justice such of their own people as might be guilty of an 
offence against the Queen’s subjects. 

As a general rule, . . . it is inexpedient that treaties 
should be frequently entered into between the local govern- 
ments and the tribes in their vicinity. . . . The safety 
and welfare of an uncivilized race require that their rela- 
tions with their more cultivated neighbors should be dim- 
inished rather than multiplied. . . . To the preceding 
statement an exception is to be made as far as respects 
the pastoral relation formed between Christian missionaries 
and the aborigines. To protect, assist, and countenance 
these gratuitous and invaluable agents is amongst the most 
urgent duties of the governors of our colonies. On the other 
hand, those by whom the missionaries are selected and 
employed, can not be too deeply impressed with a sense 
of the responsibility under which that choice is made. 
Without deviating into discussions scarcely within the 
province of a parliamentary committee, it may be observed 
that piety and zeal, though the most essential qualifications 
of a missionary to the aborigines, are not the only endow- 
ments indispensable to the faithful discharge of his office; 
in such situations it is necessary that, with plans of moral 
and religious improvement, should be combined well 
matured schemes for advancing the social and political 
improvement of the tribes, and for the prevention of any 
sudden changes which might be injurious to the health and 
physical constitution of the new converts. 


The British and Foreign Aborigines Protection Soci- 
ety has always based itself upon the Report of the Par- 
liamentary Committee of 1837, and in its proceedings 
and publications, and those of its allied societies in 
other countries, the word “‘aborigines’’ has been per- 
sistently used in the sense in which it is used in that 
report. In its national acts, however, Great Britain 
has used the word ‘“‘natives’’ almost exclusively. The 
United States, having had to deal only with the Ameri- 


Definition of Aborigines 17 


can Indians, has in its national action described them 
merely as ‘‘Indians’’; and the same is true of Canada. 
France, and the Latin countries use exclusively the 
word indigénes. Germany and the Germanic countries 
use exclusively the word ezngeborenen. 

It is only when the problem of the contact between 
civilized and uncivilized races is considered as distinct 
from its relation to any one civilized state, and as a 
matter of common interest to all civilized states that 
the word ‘‘aborigines’’ is coming into general use. Asa 
Latin word it fits into all languages. The Englishman, 
accustomed to the word “natives,” the American 
thinking in terms of “‘Indians,’”’ the Frenchman using 
invariably the term indigénes, and the German employ- 
ing the word eimgeborenen can find in the word “‘abo- 
rigines’”’ a term which all can adopt in discussing the 
common problem which each nation is called upon to 
meet and solve in its colonizing activities. 

The final act of the Berlin African Conference of 
1884-85 in the original (French) version uses the word 
indigénes, and the official English translation the word 
“natives.’’ In the preamble of the final act of the 
Brussels Conference, the original (French) version uses 
the expression de protéger efficacement les populations ab- 
origénes de l'Afrique. In the official English translation 
the paragraph in which these words occur is thus worded: 


Being equally actuated by the firm intention of putting 
an end to the crimes and devastations engendered by the 
traffic in African slaves, of efficiently protecting the abo- 
riginal population of Africa, and of securing to that vast 
continent the benefits of peace and civilization. 


Assuming that the above definition of aborigines is 
correct, the question of aborigines in the law and prac- 
tice of nations is: 


2 


18 The Question of Aborigines 


First. What are the general principles of the law of 
nations which the colonizing States respectively have 
recognized and applied and now recognize and apply, 
as governing their respective relations with the un- 
civilized tribes which were inhabiting the regions colo- 
nized by them at the time they respectively assumed 
the sovereignty of the regions? 

Second. To what extent and on what principles have 
civilized States cooperated with each other in recog- 
nizing and applying these principles? 


CHAPTER II 
HISTORICAL INTRODUCTION 


HE instructions of the Department in regard to the 
making of this study of authorities and docu- 
ments state that ‘‘the plan does not, in general, 

contemplate research prior to the period of the Congress 
of Vienna,’’ but that this limitation is not imperative. 
The peace of 1763 between Great Britain and France, 
involving as it did the transfer of territory inhabited 
by aboriginal tribes, would seem to have been the occa- 
sion of an investigation into the law of nations on this 
subject which resulted in the formulation of the basic 
principles subsequently applied by the European na- 
tions and the United States. Therefore the peace of 
1763, rather than the Congress of Vienna, is in this 
study taken as beginning of the modern law on the 
subject. 

The views held by Great Britain and France in 1763 
are evidenced by the fact that in the peace treaty they 
disposed of the territory inhabited by Indian tribes 
without any reference to them; thus assuming that 
aboriginal tribes had neither a title to the soil nor sov- 
ereignty. The royal proclamation of 1763, making the 
fundamental dispositions of the vast hinterland north 
and west of the American colonies, reserved to the 
British Government the exclusive right to purchase and 
extinguish the rights of the Indian tribes as occupants 
of the soil, and forbade the settlement of Europeans on 
territory occupied by the Indians until after the Indian 

19 


20 The Question of Aborigines 


right had been extinguished by tribal conveyance to 
the British Government; so that no title to land could 
be obtained by any person or corporation by an Indian 
conveyance. The British Government dealt with the 
Indian tribes on this territory by so-called ‘‘treaties,”’ 
according to which the tribes accepted the protection 
of Great Britain and agreed to have no dealings with 
other European States. 

Meantime all the western European powers were in 
contact with the tribes of middle Africa. Their citi- 
zens were engaged in deporting African negroes to the 
West Indies and to the English, French, Spanish, and 
Portuguese colonies of America to supply the demand 
for labor. Slavery was universally recognized as an 
institution not contrary to the law of nations, though 
open to prohibition by any State. The African negroes 
were sold into slavery. The deportation was accom- 
panied with inhumane and atrocious practices, the 
negroes being captured and conveyed by force and the 
transportation across the ocean being effected without 
regard to the fact that they were human beings. 

The democratizing and humanitarian movement of 
the last quarter of the eighteenth century, and especially 
the American declaration of the fundamental rights of 
man, contained in the preamble of the Declaration of 
Independence, led to a discussion of slavery and the 
slave trade, and thus to a consideration of the principles 
of the law of nations regarding the relations of civilized 
States to uncivilized peoples. 

In the ordinance for the government of the North- 
west Territory of 1787 slavery was abolished in the 
Territory, and one of the ‘“‘Articles of Compact’’ covered 
the two subjects of education and the relations with 
the Indian tribes, thus suggesting a relationship to them 
not merely of protection but of tutorship. ‘This article 


Historical Introduction 21 


asserted the obligation of the United States and the 
governments established in the Northwest Territory to 
deal justly with the Indians as persons domesticated 
within the United States, but not forming a part of 
its citizenship. 

The Articles of Confederation and the Constitution 
recognized the Congress as the organ of the United 
States in dealing with the Indian tribes, and by impli- 
cation provided for the abolition of the slave trade, so 
far as the United States was concerned, in 1808. By 
implication slavery and the slave trade were recognized 
as permissible by the law of nations, but a distinction 
was made between slave trade and slavery, the former 
being placed in the way of abolition at a definite time 
and the time of abolition of the latter being left 
uncertain. 

The French declaration of the rights of man in 1791, 
followed by the decree abolishing slavery in the French 
colonies in 1794—which remained in force until the 
restoration of slavery by the Napoleonic government in 
1802—stirred up discussion in Europe over the whole 
question of the relationship of the civilized States to 
uncivilized peoples. 

A body of influential persons in England conceived 
the plan of establishing a colony at Sierra Leone to be 
settled by negroes reclaimed from the slave-trading 
operations. It was the purpose to civilize these negroes 
and use them as the means of extending civilization. 
This colony came in contact with the African company 
of merchants and traders, whose members were engaged 
in the slave-trading operations. The Sierra Leone ex- 
periment failed, but by the efforts of the reformers 
Great Britain forbade the slave trade to its citizens in 
1807. The colony was turned over to the British 
Government, and the persons who had composed the 


22 The Question of Aborigines 


Sierra Leone company formed themselves, in 1807, with 
the cooperation of a number of persons of social and 
political prominence, into the African Association. 
This was a propagandist association and was well sup- 
ported financially. It employed its own counsel and 
had a great influence with the British Government. 
During the Napoleonic wars, French commerce on the 
sea ceased, and with it the French slave trade. The 
Spanish, Portuguese, and American ships engaged in 
the trade were captured by British naval vessels as 
engaged in a trade contrary to the law of nations, taken 
into Sierra Leone, and there condemned by the vice- 
admiralty court. The Spanish and Portuguese govern- 
ments insisted that neither slavery nor the slave trade 
was contrary to the law of nations, and that the aboli- 
tion of either by any nation did not affect other nations. 
This was held by the admiralty courts in Great Britain 
to be the case, but they upheld the right of British 
naval vessels to capture the slave-trading ships of any 
nation that had itself prohibited the trade to its own 
citizens. Thus, according to this doctrine, after 1808, 
when the United States abolished the slave trade, its 
slave-trading ships were subject to capture by British 
naval vessels. ‘ 
In this situation Great Britain, at the Congress of 
Vienna, moved for a declaration of the European pow- 
ers in favor of abolishing the slave trade. It was de- 
cided that non-colonizing powers, as well as colonizing 
powers, might participate in this declaration, since it 
was not merely a colonial question, but one which con- 
cerned the interests of humanity. First, however, Great 
Britain acknowledged the legality of the slave trade 
under the law of nations, by a treaty with Portugal 
providing for payment of damages for capturing her 
slave ships, and the powers then joined in the famous 


Historical Introduction 23 


declaration in favor of the abolition of the slave trade. 
The United States, in its treaty of peace with Great 
Britain after the war of 1814, had made a declaration 
to the same effect some two months before the declara- 
tion of the Congress of Vienna. 

Negotiations looking toward the cooperative action 
of the States concerned to stop the slave trade continued 
at the subsequent congresses of the powers, but were 
of no avail, because all the powers, and especially 
France, were unwilling to agree to an extension of the 
right of search and capture at sea, hitherto acknowl- 
edged only as a belligerent right, so that it should apply 
in time of peace to ships engaged in a trade outlawed 
by the nations. Russia, at the Congress of Aix-la- 
Chapelle, proposed an international commission of sur- 
veillance, to be composed of delegates of all the powers, 
to be located on the coast of Africa, to be subject to 
the regulation of European congresses, and to wield 
the power of an international fleet provided by all the 
European States, for the capture of slave-trading ships, 
such ships to be subject to condemnation by the inter- 
national commission sitting as an international prize 
court. But the powers objected to this as an arrange- 
ment in derogation of national sovereignty. 

Meantime as the nations one by one abolished the 
slave trade as respects their own citizens the horrors 
of it increased. More and more vicious characters en- 
gaged in it, as it took on the character of a smuggling 
operation; and the necessity of concealing the victims 
by means of cargo and by devices specially intended for 
concealment made the conditions of transportation of 
negroes a scandal to the civilized world. 

The difficulty of abolishing the slave trade on the sea 
led to the perception that it could really be abolished 
only by abolishing it on land and sea alike. The study 


24 The Question of Aborigines 


of the conditions essential to abolishing it on land led 
to a study of the conditions of aboriginal life, especially 
in Africa, and this opened the way for the study of the 
whole question of aborigines, both as related to the 
individual civilized States exercising sovereignty over 
them and as related to civilized States collectively and 
generally. 

While this situation existed in Europe, the United 
States had had occasion to consider its relations with 
the Indians. Washington, Adams, and Jefferson had 
pursued a policy of dealing with the Indian tribes in 
the Northwest Territory on such an elevated plane that 
the Indian ‘‘treaties’’ came near to recognizing the 
tribes in the so-called ‘‘Indian country” as States. 
This ‘‘Indian country” lay between the United States 
and Canada. In the peace negotiations between the 
United States and Great Britain in 1814 the British 
Government proposed as a term of peace the recognition 
of the ‘‘Indian country”’ as an Indian buffer state under 
the protection of Great Britain and the United States. 
The ‘‘treaties’’ of the United States with the Indian 
tribes were pointed to by the British commissioners as 
evidencing the recognition of the collective tribes as a 
native state. This claim was met by the commissioners 
of the United States by showing that the United States 
had always claimed and acted under the principles of 
the law of nations as recognized by France and Great 
Britain in 1763, and that the Indian tribes were domes- 
ticated communities of the United States, which it 
customarily dealt with by agreement or treaty, but 
which were subject to its sovereignty and plenary 
jurisdiction and entitled to its protection. 

Under President Monroe, this understanding of the 
relations of the United States with aboriginal tribes 
eventuated in a general movement for ameliorating the 


Historical Introduction 25 


condition of the Indians and of the negroes. The plan 
was to colonize the Indians in the Western Territory 
under the protection and sovereignty of the United 
States, and the negroes in Africa, under the protection 
and patronage of the United States. The removal of 
the Indians was undertaken by President Monroe, and 
the Indian question was discussed in Congress and in 
the press; the conclusions of the American Government, 
adopted in 1814, being confirmed more and more 
strongly as lawyers and statesmen examined and reex- 
amined the question. The plan for colonizing the ne- 
groes in Africa was taken up by national and State 
organizations and was patronized by the Government, 
which assisted by means of its naval vessels and by 
sending out agents of a consular character to supervise 
the settlements of negroes in Africa. 

Meantime test cases were brought before the Supreme 
Court of the United States. Claims, asserted under 
grants of land to individuals made by Indian tribes, 
in opposition to later United States patents of the same 
land, compelled the Supreme Court, under Chief Justice 
Marshall, in 1823 (Johnson v. McIntosh, 8 Wheaton, 
543), to examine the whole question of aborigines in 
the law and practice of nations. The result was that 
the Indian tribes were declared to hold the relationship 
to the United States of domesticated communities, in 
the nature of municipal corporations, without other 
right in the land than that of uncivilized occupancy—a 
right which was not transferable to any individual, 
civilized or uncivilized, and which was subject only to 
extinction by tribal conveyance made to the State exer- 
cising the sovereignty. A little later, in a case involving 
Indian tribal rights by treaty (Cherokee Nation ». 
Georgia, 5 Peters, I) the court, again speaking by Chief 
Justice Marshall, described the Indians as ‘“‘wards of 


26 The Question of Aborigines 


the Nation,” thus substituting for the relationship of 
mere ‘‘protection,’’ the more humane idea of “‘guardian- 
ship.” 

In 1826, in the case of The Antelope, 10 Wheaton, 66, 
the Supreme Court, in a case involving the right to 
capture a ship engaged in slave trading, speaking by 
Chief Justice Marshall, held that neither slavery nor 
the slave trade was contrary to the law of nations; the 
fact that it was under the ban of the proposal of the 
Congress of Vienna for universal abolition by uniform 
and cooperative national action not having changed the 
law as it stood before the proposal was made. 

The labors of the English reformers regarding slavery 
having eventuated in 1833 in the abolition of slavery 
in the British colonies by compensation paid to slave 
owners, a part of them, as has been said, turned their 
attention to the wider question of the rights and duties 
of civilized States toward aborigines in general, calling 
themselves the British and Foreign Aborigines Pro- 
tection Society; the others devoting themselves to the 
problem of stopping the operations of the smuggling 
slave traders at sea and the slave-raiding expeditions 
on land. In 1842 the principal maritime States suc- 
ceeded in agreeing upon a reciprocal right of search of 
their vessels for suspected slave trading, this right being 
restricted to identified naval ships and being permissible 
only within a specified zone of the ocean. 

Reference to the report of the British Parliamentary 
Committee on Aboriginal Tribes of 1837 has already 
been made. It was not a definitely legal document, and 
purported to examine the question rather as a practical 
one of a social and ethical character. It accentuated 
the moral duties of colonizing States, but did not ven- 
ture upon a consideration of how far these responsibili- 
ties had been by international recognition transformed 


Historical Introduction 27 


into legal obligations of international trusteeship 
and guardianship. 

The American negro settlements on the west coast 
of Africa maintained a precarious existence and an in- 
definite international status. They resembled colonies 
of the United States to some extent, but the United 
States, on account of the Monroe doctrine, denied 
itself sovereignty over them and asserted their inde- 
pendence under its patronage. Their international 
independence was at last recognized and the State of 
Liberia came into existence. The United States has 
stood in the position of ‘‘next friend,” or international 
patron, disclaiming sovereignty or control of any kind, 
but holding itself morally obligated to use its good offices 
on behalf of Liberia in all international complications. 
It has thus maintained a species of international 
guardianship—a benevolent surveillance without claim 
of sovereignty or responsibility. The question of Li- 
beria is plainly not one of the relationship of civilized 
states to aboriginal tribes, since the inhabitants, though 
of aboriginal descent, are civilized. 

After the Civil War the abolition of slavery in the 
United States made possible clear legal thinking and 
definite action on the question of the law of nations 
relating to aborigines. President Grant, in his first mes- 
sage, reasserted that the Indians were ‘‘wards of the 
Nation” and set about the task of making a settlement 
of the Indian problem. Congress established a Board 
of Indian Commissioners as a commission of surveillance 
for all the Indian tribes, with advisory powers under 
the Secretary of the Interior. At the same time it 
reformed the Indian agencies and abolished for the 
future the practice of dealing with the Indian tribes 
by treaty. The Supreme Court has at all times asserted 
and reasserted the principle that the Indian tribes are 


28 The Question of Aborigines 


the wards of the Nation and has liberally interpreted 
the guardianship so as to enable the United States 
efficiently to protect and train the Indians. 

The Berlin African Conference of 1884-85 marked a 
definite acceptance by the civilized States of a legal 
relationship towards aboriginal tribes of a personal and 
fiduciary character—a responsibility which was at once 
individual and collective. The declaration of the con- 
ference regarding aborigines left no doubt on this point. 
The principle of the law of nations that such tribes are 
wards of the society of nations, and that the sovereignty 
of civilized States over them follows the dispositions of 
territorial sovereignty made by the civilized States 
among themselves, was upheld. 

The Berlin African Conference, by its declaratory 
action of a legislative nature, gave an international 
character to the whole territory of middle Africa—the 
conventional basin of the Congo so-called. By this 
international action this great territory became to some 
extent what may be called a zone of international 
jurisdiction under international surveillance. The 
United States, claiming a special interest in this region 
by reason of the discoveries of Stanley, an American 
citizen, but renouncing individual sovereignty and 
guardianship over it in deference to its policy declared 
by Monroe, took the lead in the movement to place 
the region under the over-sovereignty and chancellor- 
ship of all the civilized States collectively. Seconded 
by some of the European States, it succeeded to a 
certain extent. In its effort to convert middle Africa 
into an international territory for the benefit of the 
aborigines, it utilized the International Congo Associa- 
tion, a private association of an international character, 
which had gained political influence in middle Africa 
by treaties with the aboriginal tribes. Six months 


Historical Introduction 29 


before the Berlin Conference the United States recog- 
nized the association as a State which was to act as 
the medium for internationalizing middle Africa. Dur- 
ing the Berlin African Conference the other States, 
inspired by the benevolent plans and purposes of the 
United States toward Negro Africa, recognized the 
association as a State. The international character 
thus impressed upon the Congo basin by the national 
acts of recognition was made more specific by the ex- 
press recognition of the conference. The international 
character of middle Africa was thus protected by what 
was virtually a covenant running with the land. The 
plan of the United States for an international neutrali- 
zation of the territory received only a shadowy recog- 
nition in the final act of the conference, and the plan 
of Germany for an international commission of sur- 
veillance met a similar fate. 

The Brussels African Conference of 1889-90 applied 
the principle of international cooperation concerning 
common measures for abolishing the slave trade and 
for protecting the aborigines inhabiting the great zone 
of middle Africa between the desert on the north and 
the Cape region on the south against the two most 
powerful agents of their self-destruction—intoxicants 
and firearms. 

The period since 1890 has been marked by a definite 
acceptance and application by all civilized States of 
the principle of guardianship of aborigines. The de- 
mand for unskilled labor has assisted in the acceptance 
of this humane conception of the relationship—the 
guardianship of aborigines having the effect not only 
to satisfy the conscience but the economic needs of the 
civilized States. Numerous colonial conferences, both 
national and international, have been held, some of 
them dealing with the question of the methods to be 


30 The Question of Aborigines 


applied in the guardianship of aborigines. International 
agreements for collective guardianship have been made, 
as in the case of the Samoan Islands, illustrating the 
dangers of international control as distinguished from 
international cooperation and surveillance. 

Above all, the entrance of the United States into the 
work of colonization, with the fullest recognition and 
most complete application of the principles of guardian- 
ship and tutorship of aboriginal tribes, has profoundly 
stimulated the civilized States to a more and more 
complete acceptance and fulfillment of their interna- 
tional responsibilities in this respect. 


CHAPTER III 


ABORIGINES AS THE WARDS OF THE STATE WHICH 
EXERCISES SOVEREIGNTY OVER THEM 


HE nature of the relationship between a civilized 
State exercising sovereignty over a region and the 
aboriginal tribes inhabiting there was thus stated | 

in 1821, in a report made to the Secretary of War under 
the direction of President Monroe by Rev. Jedediah 
Morse, a special commissioner appointed to visit and 
report upon the Indian tribes in the United States: 


The Government, according to the law of nations, having 
jurisdiction over the Indian territory, and the exclusive 
right to dispose of its soil, the whole Indian population is 
reduced, of necessary consequence, to a dependent situation. 
They are without the privileges of self-government, except in 
a limited degree, and without any transferable property. 
They are ignorant of nearly all the useful branches of human 
knowledge, of the Bible, and of the only Savior of men 
therein revealed. They are weak and ready to perish; we 
are strong, and with the help of God, able to support, to 
comfort, and to save them. In these circumstances the 
Indians have claims on us of high importance to them and 
to our own character and reputation as an enlightened, 
just, and Christian Nation. In return for what they virtu- 
ally yield, they are undoubtedly entitled to expect from our 
honor and justice protection in all the rights which they 
are permitted to retain. They are entitled, as ‘‘children’”’ 
of the Government, for so we call them, peculiarly related 
to it, to kind paternal treatment, to justice in all our deal- 


31 


32 The Question of Aborigines 


ings with them, to education in the useful arts and sciences, 
and in the principles and duties of our religion. In a word, 
they have a right to expect and to receive from our civil and 
religious communities combined that sort of education, in 
all its branches, which we are accustomed to give to the 
minority of our own population, and thus to be raised 
gradually and ultimately to the rank and to the enjoyment 
of all the rights and privileges of freemen and citizens of 
the United States. This I conceive to be the precise object 
of the Government. If we fulfill not these duties, which 
grow naturally out of our relation to Indians, we can not 
avoid the imputation of injustice, unkindness, and unfaith- 
fulness to them—our national character must suffer in the 
estimation of all good men. If we refuse to do the things 
we have mentioned for the Indians, let us be consistent and 
cease to call them ‘‘children,”’ and let them cease to address 
our President as their “‘great father.’’ Let us leave to them 
the unmolested enjoyment of the territories they now 
possess and give back to them those which we have taken 
away from them. 


As the Government assumes the guardianship of the 
Indians, and in this relation provides for their proper edu- 
cation, provision also should be made for the exercise of a 
suitable government and control over them. This govern- 
ment unquestionably should be in its nature parental— 
absolute, kind, and mild, such as may be created by a wise 
union of a well-selected military establishment, and an 
education family. The one possessing the power, the other 
the softening and qualifying influence, both combined would 
constitute, to all the purposes requisite, the parental or 
guardian authority. 


In 1830 the Committee on Indian Affairs of the 
United States House of Representatives, to whom was 
referred that part of the President’s message recom- 


Aborigines as Wards 33 


mending the removal of the southern tribes of Indians 
to a reservation in the United States territory west of 
the Mississippi, said in their report (21st Cong., Ist 
sess., H. R. Rep. No. 227, Feb. 24, 1830): 


Principles of natural law and abstract justice are appealed 
to by some to show that the Indian tribes within the terri- 
torial limits of the States ought still to be regarded as the 
owners of the absolute property in the soil they occupy, and 
that they are to be regarded as independent communities, 
having all the attributes of sovereignty except such as they 
have voluntarily surrendered. . 

It is not . . . so important to attempt a definition of 
the nature and obligation of any abstract principles, about 
which there will always be conflicting opinions, as to state, 
with as much precision as possible, the interpretation of 
those principles, which is to be found in the maxims and 
practices of those civilized societies which settled this part 
of America, and of those which have since sprung up, in 
relation to Indian rights. 

The proofs of what that interpretation has been are to 
be found in the charters, laws, constitutions, and general 
policy of the various governments, colonial, State, and 
Federal; and to those, it would seem, we must look for the 
only admissible tests of the extent of Indian rights, on the 
one hand, and of the rights and powers of the States and 
of the Federal Government on the other. 

The nature and condition of things as they actually 
exist must be taken as the groundwork of the future policy 
and action of the Government upon this subject, and not 
what, in our opinions, they should have been. 

The foundations of the States which constitute this con- 
federacy were laid by Christian and civilized nations, who 
were instructed or misled as to the nature of their duties 
by the precepts and examples contained in the volume 
which they acknowledged as the basis of their religious 
rites and creed. To go forth, to subdue and replenish the 
earth, were received as divine commands or relied on as 

3 


34 The Question of Aborigines 


plausible pretexts to cover mercenary enterprises by the 
Governments which gave the authority and the adventurers 
who first discovered and took possession of the New World. 
Whether they were right or wrong in their construction of 
the sacred text, or whether their conduct can in every 
respect be reconciled with their professed objects or not, it 
is certain that possession, actual or constructive, of the 
entire habitable portion of this continent was taken by 
the nations of Europe, divided out, and held originally by 
the right of discovery as between themselves and by the rights 
of discovery and conquest as against the aboriginal inhabi- 
tants. In the Spanish Provinces, the Indians became the 
property of the grantee of the district of country which they 
inhabited; and this oppression was continued for a con- 
siderable period. Although the practice of the Crown of 
England was not marked by an equal disregard of the rights 
of personal liberty in the Indians, yet their pretensions to 
be the owners of any portion of the soil were wholly dis- 
regarded. The English colonies and plantations are known 
to have been settled and governed under various charters, 
commissions, and instructions issued by the Crown to 
individuals and companies, some of which contained grants 
of extensive districts, to be held in absolute property, 
accompanied by certain political powers and privileges; 
while others contained grants of political privileges only. 
This difference in the nature and extent of the rights 
granted gave rise to the distinction between proprietary and 
regal governments among the colonies. Although the para- 
mount sovereignty of the mother country was reserved in 
all the charters, yet, as in those which included a grant of 
the absolute property in the soil there was no reservation 
of any part of it to the natives, they were left to be disposed 
of as the proprietors thought proper. It is matter of history 
that the Crown, having the power under such restrictions 
as the spirit of the English institutions imposed to regulate 
the affairs of those colonies which were originally and of 
others which afterwards came under its control, by the for- 
feiture or surrender of their original charters, permitted 


Aborigines as Wards 35 


the Indians in all of them to be governed or otherwise dis- 
posed of by the colonial authorities without any interference 
on its part until within a very short period before the Revo- 
lution. Thus it happened that in all the colonies the maxims 
and conduct adopted and pursued in relation to the Indians 
were substantially the same. Humanity and the religious 
feeling of the early adventurers forbade that they should 
be thrust with violence out of the land. The trade with the 
great tribes of the interior was profitable, and the peculiar 
mode of warfare practiced by the Indians soon brought the 
colonists to perceive the advantage of cultivating peaceable 
relations with all of them. This interest, however, was 
found, in the progress of the new societies, to be opposed to 
another great interest, which was that their resources 
should be increased and the demands of the cultivator 
supplied by appropriating the wild land within their limits 
as speedily as possible. The difficulty that was felt in 
reconciling these two interests lies at the foundation of the 
policy which was adopted in relation to the Indians, and 
the expedients which were resorted to in order to effect an 
object so important constitute the evidence of what the 
policy of the country was from that time up to the forma- 
tion of the Constitution. One of those expedients was to 
appear to do nothing which concerned the Indians, either 
in the appropriation of their hunting grounds or in control- 
ling their conduct, without their consent. It is not intended 
to be asserted that this device was employed by all the 
colonies from their first settlement. It came, however, to 
be a general principle of action upon this subject at some 
period or other of their progress, and was adhered to when 
found practicable and in any degree consistent with their 
interests, but in several instances, some of which occurred 
at an early and others at a later period, the public interests 
were believed to require a departure from it; but in all the 
acts, first of the colonies and afterwards by the States, the 
fundamental principle that the Indians had norights by vir- 
tue of their ancient possession either of soil or sovereignty 
has never been abandoned, either expressly or by implication, 


36 The Question of Aborigines 


The rigor of the rule of their exclusion from those rights 
has been mitigated, in practice, in conformity with the 
doctrines of those writers upon natural law who, while they 
admit the superior right of agriculturists over the claims of 
savage tribes in the appropriation of wild lands, yet, upon 
the principle that the earth was intended to be a provision 
for all mankind, assign to them such portion as, when sub- 
dued by the arts of the husbandman, may be sufficient for 
their subsistence. 


In the case of Johnson v. McIntosh, 8 Wheaton, 543, 
decided by the Supreme Court of the United States in 
1823, the court, speaking by Chief Justice Marshall, 
regarded the relationship of the European discoverers 
to the aboriginal tribes of America as based primarily 
on the rules of international law concerning conquest 
in war, as modified by the humanitarian instincts of 
the conquerors and the needs of the situation due to 
the mental and moral backwardness of those living in a 
tribal state. In the opinion the court said: 


The tribes of Indians inhabiting this country were fierce 
savages, whose occupation was war, and whose subsistence 
was drawn chiefly from the forest. To leave them in pos- 
session of their country, was to leave the country a wilder- 
ness; to govern them as a distinct people was impossible, 
because they were as brave and high-spirited as they were 
fierce, and were ready to repel by arms every attempt on 
their independence. 

What was the inevitable consequence of this state of 
things? The Europeans were under the necessity either of 
abandoning the country, and relinquishing their pompous 
claims to it, or of enforcing those claims by the sword, 
and by the adoption of principles adapted to the condi- 
tion of a people with whom it was impossible to mix, and 
who could not be governed as a distinct society; or 
of remaining in their neighborhood and exposing them- 


Aborigines as Wards 37 


selves and their families to the perpetual hazard of being 
massacred. 

Frequent and bloody wars, in which the whites were not 
always the aggressors, unavoidably ensued. European pol- 
icy, numbers, and skill prevailed. As the white population 
advanced, that of the Indians necessarily receded. The 
country in the immediate neighborhood of agriculturalists 
became unfit for them. The game fled into thicker and more 
unbroken forests, and the Indians followed. The soil, to 
which the Crown originally claimed title, being no longer 
occupied by its ancient inhabitants, was parceled out accord- 
ing to the will of the sovereign power, and taken possession 
of by persons who claimed immediately from the Crown, 
or mediately through its grantees or deputies. 

That law which regulates and ought to regulate, in gen- 
eral, the relations between the conqueror and the conquered 
was incapable of application to a people under such cir- 
cumstances. The resort to some new and different rule, 
better adapted to the actual state of things, was unavoid- 
able. Every rule which can be suggested will be found to 
be attended with great difficulty. 

However extravagant the pretension of converting the 
discovery of an inhabited country into conquest may ap- 
pear, if the principle has been asserted in the first instance 
and afterwards sustained; if a country has been acquired 
and held under it; if the property of the great mass of the 
community originates in it, it becomes the law of the land 
and can not be questioned. So, too, with respect to the 
concomitant principle, that the Indian inhabitants are to 
be considered merely as occupants, to be protected, indeed, 
while in peace, in the possession of their lands, but to be 
deemed incapable of transferring the absolute title to others. 
However this restriction may be opposed to natural right 
and the usages of civilized nations, yet if it be indispensable 
to that system under which the country has been settled, 
and be adapted to the actual condition of the two peoples, 
it may, perhaps, be supported by reason and certainly can 
not be rejected by courts of justice. 


38 The Question of Aborigines 


In the case of Cherokee Nation v. State of Georgia, 
5 Peters, 1, 16, decided in 1831, the Supreme Court 
held that the Cherokee Nation was not a ‘‘State”’ 
within the meaning of the provision of the Constitution 
of the United States giving the court jurisdiction in 
controversies in which a State of the United States or 
the citizens thereof and a foreign State, citizens or 
subjects thereof, are parties. The court, speaking by 
Chief Justice Marshall, said: 


The Indian Territory is admitted to compose a part of 
the United States. In all our maps, geographical treatises, 
histories, and laws it is so considered. In all our intercourse 
with foreign nations, in our commercial relations, in any 
attempt at intercourse between Indians and foreign nations, 
they are considered as within the jurisdictional limits of 
the United States, subject to many of those restraints 
which are imposed upon our own citizens. They acknowl- 
edge themselves in their treaties to be under the protection 
of the United States; they admit that the United States 
shall have the sole and exclusive right of regulating the 
trade with them and managing all their affairs as they think 
proper. . 

Though the Indians are acknowledged to have an un- 
questionable and therefore unquestioned right to the lands 
they occupy until that right shall be extinguished by a 
voluntary cession to our Government, yet it may well be 
doubted whether those tribes which reside within the 
acknowledged boundaries of the United States can, with 
strict accuracy, be denominated foreign nations. They 
may, more correctly, perhaps, be denominated domestic 
dependent nations. They occupy territory to which we 
assert a title independent of their will, which must take 
effect in point of possession when their right of possession 
ceases. Meanwhile, they are in a state of pupilage. Their 
relation to the United States resembles that of a ward to 
his guardian. They look to our Government for protection; 


Aborigines as Wards 39 


rely upon its kindness and its power; appeal to it for relief 
* to their wants; and address the President as their great 
father. They and their country are considered by foreign 
nations as well as by ourselves as being so completely 
under the sovereignty and dominion of the United States 
that any attempt to acquire their lands, or to form a politi- 
cal connection with them, would be considered by all as an 
invasion of our territory and an act of hostility. 


In the report of the British Parliamentary Committee 
on Aboriginal Tribes of 1837, to which reference has 
been made, though there was no definition of the 
relationship of civilized States to aboriginal tribes under 
their sovereignty as that of guardianship and tutorship, 
the duties of civilized States which it insisted upon as 
arising out of the relationship were precisely those of 
guardianship and tutorship. They spoke of the “re- 
sponsibility” and “‘obligation” of Great Britain, and 
based this obligation upon ‘‘the ability which we possess 
to confer upon them the most important benefits,’ and 
‘their inability to resist any encroachments, however 
unjust, however mischievous, which we may be disposed 
to make.” ‘The disparity of the parties,” they said, 
‘“‘the strength of one and the incapacity of the other 
to enforce the observance of their rights, constitutes 
a new and irresistible appeal to our compassionate 
protection.” 

The following letter written by Lord John Russell, 
as prime minister, on August 23, 1840, to Sir George 
Gipps, the governor of New South Wales, illustrates 
the views held by the British Government of that day 
on the subject of the relations between Great Britain 
and the aboriginal tribes under its sovereignty (British 
Parl. Papers, 1844, Accounts and Papers, vol. 34 (Colo- 
nies), Papers relating to the Aborigines, Australian 
Colonies, pp. 73, 74): 


40 The Question of Aborigines 


DOWNING STREET, 25 August, 1840. 

Sir: In my dispatch No. 128, of the 5th instant, I 
referred to the proposals of the Church Missionary Society, 
and the report of the Colonial Land and Emigration Com- 
missioners thereupon, declining at the same time to furnish 
you with positive instructions on the subject of the aborig- 
ines. In so acting, however, I felt that while it was not 
expedient absolutely to fetter your discretion, suggestions 
from Her Majesty’s Government for your guidance might 
further and promote the great object in view. 

I proceed now to communicate some remarks on the 
report and on the general subject. 

1. We should run a risk of entire failure if we should 
confound in one abstract description of aborigines the vari- 
ous races of people, some half civilized, some little raised 
above the brutes, some hunting over vast tracts of country, 
others with scarcely any means or habits of destroying wild 
animals at all, who have encountered the discovering or in- 
vading nations of Europe over the face of the globe. One 
tribe in Africa often differs widely in character from another 
at fifty miles distance; the red Indian of Canada and the 
native of New Holland are distinguished from each other in 
almost every respect. We, indeed, who come into contact 
with these various races, have one and the same duty to 
perform toward them all, but the manner in which this 
duty is to be performed must vary with the varying ma- 
terials upon which we are to work. No workman would 
attempt to saw a plank of fir and cut a block of granite 
with the same instrument, though he might wish to form 
each to the same shape. You, however, who are acquainted 
with the circumstances in which you have to act can decide 
in what manner you can best execute the intentions of 
the Queen’s Government to do justice and show kindness to 
the natives of the colony over which you preside. 

2. There appears to be great difficulty in making reserves 
of land for the natives, which shall be really beneficial to 
them. Two sources of mischief mar the most benevolent 
designs of this nature; the one arising from the inaptitude 


Aborigines as Wards 41 


of the natives to change their desultory habits and learn 
those of settled industry; the other from the constant inroad 
of Europeans to rob, corrupt, and destroy them. Between 
the native, who is weakened by intoxicating liquors, and 
the European, who has all the strength of superior civiliza- 
tion and is free from its restraints, the unequal contest is 
generally of no long duration; the natives decline, diminish, 
and finally disappear. The Church Missionary Society 
propose, in order to prevent these mischiefs, that they 
should hold land in Wellington Valley in trust for the 
natives and that all interference on the part of other set- 
tlers should be prevented. To the remarks of the commis- 
sioners on this plan I would only add that it might be useful 
and would certainly be just to engage to the missionaries 
that if the Crown should think proper at any time to resume 
the land in Wellington Valley a full compensation or allow- 
ance shall be made to the society for all improvements 
which they may have made of a permanent character. 
Anything which can be done without violation of principle 
to induce the Church Missionary Society to continue their 
work should be done. Nothing can be more painful or 
more laborious or more dangerous than to take up a post 
in the midst of a race of suspicious, ignorant, and indolent 
savages and to defend their cause and their existence 
against rapacious, violent, and armed Europeans, yet such 
is often the position of the missionaries. None but a strong 
feeling of religion would induce good men to undertake 
such a task. But in giving such men all encouragement 
every precaution should be taken against those who, 
counterfeiting the same holy and religious zeal, become 
speculators in colonial agriculture and lose sight of the 
sacred purpose for which alone they have been intrusted 
with the funds of the society. | 

3. The commissioners recommend that a small force 
should be stationed for the protection of the missionaries 
and natives. I think it may be advisable to give the men 
employed in this service double pay and reduce them to 
their former service and pay on any evidence of misconduct. 


42 The Question of Aborigines 


4. The best chance of preserving the unfortunate race 
of New Holland lies in the means employed for training 
their children. The education given to such children 
should consist in a very small part of reading and writing. 
Oral instruction in the fundamental truths of the Christian 
religion will be given by the missionaries themselves. The 
children should be taught early; the boys to dig and plough, 
and the trades of shoemakers, tailors, carpenters, and 
masons; the girls to sew and cook and wash linen, and keep 
clean the rooms and furniture. The more promising of 
these children might be placed, by a law to be framed for 
this purpose, under the guardianship of the governor, and 
placed by him at a school, or in apprenticeship, in the more 
settled parts of the colony. Thus early trained, the capacity 
of the race for the duties and employments of civilized life 
would be fairly developed. 

5. There remains, as connected with this subject, the 
vast and perhaps insuperable difficulty of the conflict car- 
ried on, with little intermission, between the colonists and 
the natives. The colonist occupies a larger tract of land 
than he has the means to guard; his cattle stray and are 
killed by the natives; he collects a force and revenges his 
loss on the first tribe he encounters. Again, the natives, 
finding the cattle unwatched, drive away a herd, and de- 
prive the colonist of his wealth; a new source of retaliation 
and bloodshed. It is but too clear that the only effectual 
remedy for this lamentable evil is an organized force ade- 
quate to keep both parties in check and confine each to the 
limits which the Government shall assign. But this remedy 
is SO expensive and requires so much vigilance, so much 
temper in every soldier or constable, and the territory to 
be traversed is so large, that it is after all imperfect. 

6. I have not yet touched on the application of the land 
fund to the protection of the aborigines. It is my opinion 
that 15 per cent of the yearly produce of sales should be so 
applied. It will be for you to consider the details of the 
appropriation; but I must for the future require that on or 
before the 15th of January in every year a report should 


Aborigines as Wards 43 


be made to you, for the information of Her Majesty and of 
Parliament, stating all the transactions of the past year 
relating to the condition of the natives, their numbers, 
their residence at any particular spot, the changes in their 
social condition, the schools, and all other particulars, 
including the state and prospects of the aboriginal races. 


In the case of United States v. Rogers, 4 Howard, 
567, decided in 1846, where the question was as to the 
jurisdiction of the United States courts to punish crimes 
committed in the Indian Territory by members of the 
Indian tribes, the Supreme Court, speaking by Chief 
Justice Taney, in upholding the jurisdiction of the 
court, said: 


The country in which the crime is charged to have been 
committed is a part of the territory of the United States, 
and not within the limits of any particular State. It is 
true that it is occupied by the tribe of Cherokee Indians. 
But it has been assigned to them as a place of domicile for 
the tribe, and they hold and occupy it with the assent of 
the United States and under their authority. The native 
tribes who were found on this continent at the time of its 
discovery have never been acknowledged or treated as in- 
dependent nations by the European Governments, nor 
regarded as the owners of the territories they respectively 
occupied. On the contrary, the whole continent was divided 
and parceled out, and granted by the Governments of 
Europe as if it had been vacant and unoccupied land, and 
the Indians continually held to be, and treated as subject 
to their dominion and control. 

It would be useless at this day to inquire whether the 
principle thus adopted is just or not, or to speak of the 
manner in which the power claimed was in many instances 
exercised. It is due to the United States, however, to say 
that while they have maintained the doctrines on this 
subject which had been previously established by other 
nations, and insisted upon the same powers and dominion 


44 The Question of Aborigines 


within their territory, yet from the very moment when the 
General Government came into existence to this time, it has 
exercised its power over this unfortunate race in the spirit 
of humanity and justice, and has endeavored by every 
means in its power to enlighten their minds and increase 
their comforts, and to save them if possible from the con- 
sequences of their own vices. 


In the case of United States v. Kagama, 118 U. G., 
375, decided in 1886, a statute making the murder of 
an Indian by another Indian on an Indian reservation 
within the limits of a State or Territory a crime punish- 
able by the United States courts, was upheld as an 
exercise of the general sovereignty of the United States 
over the Indian tribes as wards of the Nation. The 
fact that the Indian reservation was in a State was held 
to be immaterial, the State having been formed out of 
territory originally belonging to the United States. 
The court said: 


The relation of the Indian tribes living within the borders 
of the United States, both before and since the Revolution, 
to the people of the United States has always been an 
anomalous one and of a complex character. 

Following the policy of the European Governments in 
the discovery of America toward the Indians who were 
found here, the Colonies before the Revolution and the 
States and the United States since have recognized in the 
Indians a possessory right to the soil over which they 
roamed and hunted and established occasional villages. 
But they asserted an ultimate title in the land itself, by 
which the Indian tribes were forbidden to sell or transfer it 
to other nations or peoples without the consent of the para- 
mount authority. When a tribe wished to dispose of its 
land, or any part of it, or the State or the United States 
wished to purchase it, a treaty with the tribe was the 
only mode in which this could be done, The United 


Aborigines as Wards 45 


States recognized no right in private persons, or in other 
nations, to make such a purchase by treaty or otherwise. 
With the Indians themselves these relations are equally 
difficult to define. They were, and always have been, 
regarded as having a semi-independent position when 
they preserved their tribal relations; not as States, not as 
nations, not as possessed of the full attributes of sovereignty, 
but as a separate people, with the power of regulating their 
internal and social relations, and thus far not brought under 
the laws of the Union or of the State within whose limits 
they resided. 

In the opinions of these cases [Cherokee Nation v. Georgia, 
5 Peters, 1, and Worcester v. State of Georgia, 6 Peters, 
575], they are spoken of as “‘wards of the Nation,” ‘‘pupils,”’ 
as local dependent communities. In this spirit the United 
States has conducted its relations to them from its organi- 
zation to this time. But, after an experience of a hundred 
years of the treaty-making system of government, Congress 
has determined upon a new departure—to govern them by 
acts of Congress. This is seen in the act of March 3, 1871, 
embodied in section 2079 of the United States Statutes: 

“No Indian nation or tribe, within the territory of the 
United States, shall be acknowledged or recognized as an 
independent nation, tribe, or power, with whom the United 
States may contract by treaty; but no obligation of any 
treaty lawfully made and ratified with any such Indian 
nation or tribe prior to March third, eighteen hundred and 
seventy-one, shall be hereby invalidated or impaired.” 


In upholding the validity of the statute, the court 
said: 


It does not interfere with the process of the State courts 
within the reservation, nor with the operation of State laws 
upon white people found there. Its effect is confined to 
the acts of an Indian of some tribe, of a criminal character, 
committed within the limits of the reservation. 

It seems to us that this is within the competency of 


46 The Question of Aborigines 


Congress. The Indian tribes are the wards of the Nation. 
They are communities dependent on the United States, 
dependent largely for their daily food, dependent for their 
political rights. They owe no allegiance to the States, and 
receive from them no protection. Because of the local ill 
feeling, the people of the States where they are found are 
often their deadliest enemies. From their very weakness 
and helplessness, so largely due to the course of dealing of 
the Federal Government with them and the treaties in 
which it has been promised, there arises the duty of pro- 
tection, and with it the power. This has always been 
recognized by the Executive and by Congress, and by this 
court, whenever the question has arisen. . 

The power of the General Government over these rem- 
nants of a race once powerful, now weak and diminished in 
numbers, is necessary to their protection as well as to the 
safety of those among whom they dwell. It must exist in 
that Government, because it never has existed anywhere 
else, because the theater of its exercise is within the geo- 
graphical limits of the United States, because it has never 
been denied, and because it alone can enforce its laws on 
all the tribes. 


In the opinion the court likened the Indian tribes to 
municipal corporations. It said (pp. 379, 380): 


These Indians are within the geographical limits of the 
United States. The soil and the people within these limits 
are under the political control of the United States, or of 
the States of the Union. There exist within the broad 
domain of sovereignty but these two. There may be cities, 
counties, and other organized bodies with limited legislative 
functions, but they are all derived from or exist in subordi- 
nation to one or the other of these. The territorial govern- 
ments owe all their powers to the statutes of the United 
States conferring on them the powers which they exercise 
and which are liable to be withdrawn, modified, or repealed 
at any time by Congress. . . . This power of Congress 


Aborigines as Wards 47 


to organize territorial governments and make laws for their 
inhabitants arises not so much from the clause in the Con- 
stitution in regard to disposing of and making regulations 
concerning the territory and other property of the United 
States as from the ownership of the country in which the 
Territories are and the right of exclusive sovereignty, which 
must exist in the National Government and can be found 
nowhere else. Murphy v. Ramsey, 114 U.S., 15, 44. . 

The Indian reservation in the case before us is land bought 
by the United States from Mexico by the treaty of Guada- 
loupe Hidalgo, and the whole of California, with the alle- 
giance of its inhabitants, many of whom were Indians, was 
transferred by that treaty to the United States. 


In the case of Cherokee Nation v. Southern Kansas 
Railway Company, 135 U.S%., 641, decided in 1889, the 
court held that the United States had eminent domain 
in the Cherokee Reservation for granting a right of way 
to a railroad. Speaking of the Cherokee Indians, the 
court said: 


From the beginning of the Government to the present 
time they have been treated. as ‘‘wards of the Nation,”’ “‘in 
a state of pupilage,’’ ‘‘dependent political communities.”’ 


After considering the treaties with these Indians, the 
court said: 


Neither these nor any previous treaties evinced any in- 
tention upon the part of the Government to discharge them 
from their condition of pupilage or dependency and con- 
stitute them a separate, independent, sovereign people, 
with no superior within its limits. 


In the Matter of Heff, 197 U. S., 488, decided in 
1905, the court held that an Indian who by legislative 
action of the United States had been emancipated from 


48 The Question of Aborigines 


its guardianship as a member of the tribe, was no longer 
amenable to the special laws regarding Indians. 
In the opinion it was said: 


Of late years a new policy has found expression in the 
legislation of Congress—a policy which looks to the break- 
ing up of tribal relations, the establishing of the Indians 
in individual homes, free from national guardianship and 
charged with all the rights and obligations of citizens of the 
United States. Of the power of the Government to carry 
out this policy there can be no doubt. It is under no con- 
stitutional obligation to perpetually continue the relation- 
ship of guardian and ward. It may at any time abandon 
its guardianship and leave the ward to assume and be sub- 
ject to all the privileges and burdens of one suz juris. And 
it is for Congress to determine when and how that relation- 
ship shall be abandoned. It is not within the power of the 
court to overrule the judgment of Congress. It is true there 
may be a presumption that no radical departure is intended, 
and courts may wisely insist that the purpose of Congress 
be made clear by its legislation, but when that purpose is 
made clear, the question is at an end. 


But it is contended that although the United States may 
not punish under the police power the sale of liquor within 
a State by one citizen to another, it has such power if the 
purchaser is an Indian. And the power to do this is traced 
to that clause of the Constitution which empowers Congress 
“to regulate commerce with foreign nations, and among 
the several States, and with the Indian tribes.’”’ It is said 
that commerce with the Indian tribes includes commerce 
with the members thereof, and Congress having power to 
regulate commerce between white men and the Indians 
retains that power, although it has provided that the Indian 
shall have the benefit of and be subject to the civil and 
criminal laws of the State and shall be a citizen of the 
United States. But the logic of this argument implies that 


Aborigines as Wards 49 


the United States can never release itself from the obliga- 
tion of guardianship; that so long as an individual is an 
Indian by descent, Congress, although it may have granted 
all the rights and privileges of national and therefore State 
citizenship, the benefits and burdens of the laws of the State, 
may at any time repudiate this action and reassume its 
guardianship, and prevent the Indian from enjoying the 
benefit of the laws of the State, and release him from 
obligations of obedience thereto. Can it be that because 
one has Indian and only Indian blood in his veins, he is 
to be forever one of a special class over whom the General 
Government may in its discretion assume the rights of 
guardianship which it has once abandoned, and this whether 
the State or the individual himself consents? We think the 
reach to which this argument goes demonstrates that it 1s 
unsound. 


In the case of Tiger v. Western Investment Company, 
221 U.S., 286, decided in 1911, a provision of the United 
States statutes giving the Secretary of the Interior super- 
vision over conveyances of land made by Indians, was 
held constitutional. 

The court, after a full examination of the authorities 


said (p. 315): 


Taking these decisions together, it may be taken as the 
settled doctrine of this court that Congress, in pursuance of. 
the long-established policy of the Government, has a right 
to determine for itself when the guardianship which has 
been maintained over the Indian shall cease. It is for that 
body, and not the courts, to determine when the true inter- 
ests of the Indian require his release from such condition 
of tutelage. 

The privileges and immunities of Federal citizenship 
have never been held to prevent governmental authority 
from placing such restraints upon the conduct or property 
of citizens as is necessary for the general good. Incompe- 

ri 


50 The Question of Aborigines 


tent persons, though citizens, may not have the full right 
to control their persons and property. The privileges and 
immunities of citizenship were said, in the Slaughter House 
Cases (16 Wall, 36, 76), to comprehend protection by the 
Government, with the right to acquire and possess property 
of every kind, and to pursue and obtain happiness and 
safety, subject, nevertheless to such restraints as the 
Government may prescribe for the general good of the 
whole. 


In the case of Perrin v. The United States, 232 U.S., 
478, decided in 1914, the Supreme Court held that 
Congress has power to prohibit the introduction of 
intoxicating liquors into an Indian reservation whereso- 
ever situated, and to prohibit traffic in such hquors 
with tribal Indians whether upon or off a reservation, 
and whether within or without the limits of a State. 

The court said (p. 486): 


As the power [of Congress in dealing with the Indian 
wards and adopting measures for their protection] is inci- 
dent only to the presence of the Indians and their status 
as wards of the Government, it must be conceded that it 
does not go beyond what is reasonably essential to their 
protection, and that, to be effective, its exercise must not 
be purely arbitrary, but must be founded upon some reason- 
able basis. . . . On the other hand, it must also be con- 
ceded that, in determining what is reasonably essential to 
the protection of the Indians, Congress is invested with a 
wide discretion, and its action, unless purely arbitrary, 
must be accepted and given full effect by the courts. 


In the case of Woodward v. de Graffenried, 238 U.S., 
284, decided in 1915, the Supreme Court reviewed at 
length the proceedings of Congress from 1893 to that 
date hooking to the abolition of the tribal title to the 
lands in the Indian reservations assigned to the tribes 


Aborigines as Wards 51 


by the United States, especially the action of the so- 
called ‘‘Dawes Commission,” and the act of Congress 
of June 28, 1898, resulting from the labors of that com- 
mission, known as the Curtis Act. Of this act the 
court said (p. 306): 


The manifest purpose of this act was not to displace but 
to recognize the communal titles, and to administer the 
use of lands for the equal benefit of the members of the 
tribes according to the true intent and meaning of the 
early treaties; the effect being to do what the tribal govern- 
ments ought to have done but were failing to do. 


In the case of Williams v. Johnson, 239 U.5., 414, 
decided in 1915, the court, in construing an act of 
Congress relating to allotment of Indian tribal lands, 
said (p. 420): 


It has often been decided that the Indians are wards of 
the Nation and that Congress has plenary control over 
tribal relations and property, and that this power continues 
after the Indians are made citizens, and may be exercised 
as to restrictions upon alienation. 


In the case of United States v. Nice, 241 U. S., 591, 
decided in 1916, the Supreme Court, in holding con- 
stitutional the act of Congress of January 30, 1897, 
prohibiting the sale of liquor to allottee Indians, said 


(pp. 597, 598): 


The power of Congress to regulate or prohibit traffic in 
intoxicating liquor with tribal Indians within a State, 
whether upon or off an Indian reservation, is well settled. 
It has long been exercised and has repeatedly been sustained 
by this court. Its source is twofold: First, the clause in 
the Constitution expressly investing Congress with power 
“to regulate commerce with the Indian tribes,’’ and second, 
the dependent relation of such tribes to the United States. 


Uy r 
MVg- 
4 fy Ya 
r 


/ py 


52 The Question of Aborigines 


Of the ‘first it was said in United States v. Holliday, 3 


Wall., 407: . . . ‘‘Commerce with the Indian tribes 
means commerce with the individuals composing those 
tribes. . . . The locality of the traffic can have nothing 


to do with the power. The right to exercise it in reference 
to any Indian tribe, or any person who is a member of such 
tribe, is absolutely without reference to the locality of the 
tribe, or of the member of the tribe with whom it is carried 
on... . This power residing in Congress, that body is 
necessarily supreme in its exercise.’’ 

And of the second it was said in United States v. Kagama, 
118 U.S., 375, 383: ‘“‘ These Indian tribes are the wards of 
the Nation. They are communities dependent upon the 
United States. . . . From their very weakness and help- 
lessness, so largely due to the course of dealing of the Federal 
Government with them and the treaties in which it has 
been promised, there arises the duty of protection, and with 
it the power.” 

What was said in these cases has been repeated and ap- 
plied in many others. 

Of course, when the Indians are prepared to exercise the 
privileges and bear the burdens of one sui juris, the tribal 
relation may be dissolved and the national guardianship 
brought to an end, but it rests with Congress to determine 
when and how this shall be done, and whether the emanci- 
pation shall at first be complete or only partial. Citizenship 
is not incompatible with tribal existence or continued guard- 
ianship, and so may be conferred without completely eman- 
cipating the Indians or placing them beyond the reach of 
congressional regulations adopted for their protection. 


The principle that the relationship between a civi- 
lized State and the aboriginal tribes under its sover- 
eignty is analogous to that between a guardian and his 
ward is accepted and acted upon by all civilized States. 
This will more fully appear from the authorities cited 
in the following chapters. 


Aborigines as Wards 53 


In countries unsuited for extensive colonization by 
the citizens of civilized States, the modern practice of 
nations, while fully recognizing that the civilized State 
exercising the sovereignty over a region has a plenary 
power of guardianship over the aborigines, which it may 
exercise directly if it sees fit, tends to maintain the 
power of the tribal organization and to utilize these 
forms for the purposes of its paternal and tutorial 
government. Sir H. H. Johnston, the British commis- 
sioner to make a settlement of the Government of the 
Uganda Protectorate, after the conquest and the sub- 
mission of King Mwanga, in 1894, thus described the 
measures adopted for utilizing the tribal organizations 
as the nuclei of future administrative districts or States: 


We should aim at the establishment of an administration 
over the Uganda Protectorate economical and yet efficient. 
The natives, especially those speaking Bantu languages— 
because these Bantu peoples consist of settled agriculturists 
—should be assisted and encouraged to govern themselves 
as far as possible without too much interference on the part 
of European officials. The presence of this European ele- 
ment in the administration should be restricted, as far as 
possible, to the administration of justice to foreigners, the 
collection of revenue, the regulation of finance, the manage- 
ment of railways and steamers, the supervision of public 
works, and the direction’ of scientific enterprise in connection 
with the resources—animal, vegetable, and mineral—of the 
Protectorate. For instance, by the agreement of March Io, 
1900, the Kingdom of Uganda, which is equivalent to the 
Uganda Province, is divided into 20 districts or counties. 
Each district or county is placed under the administration, 
so far as native affairs are concerned, of a chief appointed 
by the King of Uganda, but requiring to have his appoint- 
ment confirmed by the principal representative of His 
Britannic Majesty’s Government. These 20 chiefs are 
under the control of the King of Uganda, who is assisted 


54 The Question of Aborigines 


in his Government by a native council or parliament 
elected on lines laid down by the British Government. The 
power of life and death is reserved to the principal repre- 
sentative of His Britannic Majesty in the Uganda Protec- 
torate, who may also intervene when it is necessary to 
modify excessive punishments of any kind. The taxation 
was limited by the same agreement to a hut and gun tax. 
These taxes are collected by the chiefs of the districts and 
handed over to the European officials. The King, native 
ministers, and subsidiary chiefs of districts receive their 
subsidies or salaries direct from the British Government 
and are not allowed to exact further payments from their 
native subjects. Almost similar arrangements now exist 
in the countries of Toro, Ankola, and Busoga, and parts 
also of the Nile and the eastern Provinces. Throughout, 
the native King or chief is encouraged to govern his people 
directly on humane principles, with only that amount of 
interference from the nearest European official as may 
protect the natives from injustice or cruelty. In this way 
it may be hoped that each district need, as a general rule, 
only require the appointment of a British collector and 
assistant collector so far as local government and the col- 
lection of revenue are concerned. The Protectorate, from 
a civil point of view, is divided into six Provinces, and these 
again into numerous districts. With the exception of the 
divisions of the Province of Uganda (which in some cases 
are small in area), the average size of a district is an area 
of about 5,000 square miles. In the eastern districts of the 
Protectorate, where the population is less settled and less 
inclined to civilization than the Bantu-speaking peoples of 
the west and center, the representative of the British ad- 
ministration is obliged to do a great deal more in connec- 
tion with the direct government of the natives than is the 
case where exist well-recognized native rulers, such as the 
Kings of Uganda, Toro, and Ankole, or the chiefs of Kavir- 
ondo, Busoga, and parts of the Nile Province. Even here, 
however, as in the case of the Masai, we are striving to 
induce the members of one homogeneous tribe to recognize 


Aborigines as Wards 55 


a single chief as their supreme ruler so far as native adminis- 
tration is concerned. We are, in fact, endeavoring to teach 
the natives to govern themselves, without too much inter- 
ference from us, within the limits of law and order and a 
regard for the principles of civilization. The Government 
naturally dissociates itself from partisanship in matters of 
religion. It has been necessary, however, to define in some 
countries districts which shall be or remain under Moham- 
medan direction, and others which shall be governed by 
Christian chiefs, following either the Anglican or the Roman 
forms of Christian faith. (Brit. Parl. Papers, 1901, vol. 
48, Cd. 671.) 


Where aboriginal tribes are located in a country 
suitable for permanent settlement by citizens of civi- 
lized States, the modern practice is to discourage tribal 
organization and to deal with the aborigines as indi- 
viduals under guardianship. 


CHAPTER IV 


THE RELATION BETWEEN THE POWER OVER ABORIGINAL 
TRIBES AND THE POWER OVER COLONIES GENERALLY 


N order to determine the relation between the power 
which a civilized State exercises over the aboriginal 
tribes under its sovereignty and that which it 

exercises over all its colonies and dependencies it is 
necessary to examine the law and practice in force in 
each of the colonizing States concerning the adminis- 
tration of all its colonies and dependent communities. 
Such a survey follows. 


THE UNITED STATES 


The Constitution of the United States (Art. I, sec. 
8), in its enumeration of the ‘‘legislative’’ powers 
granted to the Congress, makes no special mention of 
power over colonies and dependencies. By this section, 
however, Congress is given the power to raise and sup- 
port an army and navy and declare war—powers which 
from their nature may result in the acquisition of terri- 
tory, inhabited or uninhabited, and the administration 
of it and its inhabitants. In Article IV, which contains 
a delegation to Congress of the special powers incidental 
to the sovereignty of the United States which are not 
strictly ‘“‘legislative,’’ Congress is granted power (sec. 3) 
‘to dispose of and make all needful rules and regulations 
respecting the territory or other property belonging to 
the United States’ and ‘‘to admit new States into the 
Union.”’ 

56 


Powers Over Tribes and Colonies 57 


The President (Art. II, secs. 1 and 2) is given ‘‘the 
executive power,’ and the power to make treaties by 
and with the consent of the Senate, and he is made 
Commander in Chief of the Army and Navy—powers 
which in connection with the powers of Congress above 
mentioned, apply in the acquisition of territory inhab- 
ited and uninhabited, and also in the administration of 
the territory and its inhabitants, at least during the 
time that it is subjected to military government or to 
civil government under military rule. 

In a long series of cases, beginning with that of 
American Insurance Co. v. Canter, 1 Peters, 511, and 
ending with the case of Downes v. Bidwell, 182 U.5S., 
244, the Supreme Court has held that the United States, 
by the law of nations, and as incidental to its sovereign- 
ty, has power to acquire and administer territory and 
populations outside its domestic territory and popula- 
tion in any manner permitted by the law of nations— 
by discovery, occupation, cession, or conquest—and 
that the constitutional provisions above mentioned are 
recognitions and declarations of this power and specti- 
fications determining the relations and powers of the 
organs of the Government of the United States in 
exercising the power. 

Moreover, it has held that the powers of the United 
States, in making the fundamental dispositions of 
jurisdiction and soil, as the basis of local administration 
and private ownership of the land, are, according to the 
law of nations, political powers with no limitations 
except that they must be exercised to promote the fun- 
damental principles of democracy, republicanism, and 
equality of opportunity which are the basis of the 
American governmental system. It has also held that 
as respects the dispositions relating to the social rela- 
tionships of the inhabitants of acquired territory, in- 


58 The Question of Aborigines 


volving the fundamental rights of the individual to life, 
liberty, and the pursuit of happiness, the power of 
the United States, under the law of nations, is to be 
exercised by applying all the provisions of the Con- 
stitution which can reasonably and beneficially be 
applied, taking into consideration the needs of the 
local populations. 

The Supreme Court has also held that the power 
which the United States has, by the law of nations and 
its Constitution, over all colonies and dependencies is 
‘‘plenary”’ for the accomplishment of the object sought 
to be obtained. (Binns v. United States, 194 U.S., 486.) 
These objects can only be, and are, the extension of 
democracy, republicanism, and equality of opportunity. 
‘‘Plenary’’ power is the power which an agent has who 
is delegated to accomplish a certain object, and whose 
mandate is limited only by the needs of the situation. 
An agent with plenary power—an agent plenipoten- 
tiary—represents the principal with full power to do 
all which the principal might reasonably do in the 
accomplishment of the object intended. Plenary power 
is not absolute power, but power limited to the needs 
of the situation. It implies that the supreme organs of 
the United States for exercising the power of the United 
States—its Congress, its President, its Supreme Court 
—acting for the United States, in fulfilling its fiduciary 
relationship under the law of nations respecting its 
colonies and dependencies, have full powers to do all 
which the United States might reasonably and legally 
do under the law of nations, consistently with the 
fundamental principles of its Constitution and the 
fundamental principles of human society recognized by 
all civilized States. 

As the Constitution contains a Bill of Rights impos- 
ing certain prohibitions or conditions upon the action 


Powers Over Tribes and Colonies 59 


of all the organs of the Central Government respecting 
individuals under the sovereignty of the United States, 
all of the provisions of this Bill of Rights, which are of 
universal application, are applicable in all the colonies 
and dependencies of the United States from the moment 
of their acquisition. 

The Supreme Court has approved, as applicable to all 
places under American sovereignty, a formulation of 
the fundamental and universal principles of the Con- 
stitution protecting the individual against governmen- 
tal action in violation of the fundamental rights of life, 
liberty, and the pursuit of happiness. This statement 
of principles thus constitutes a fundamental bill of 
rights of all the inhabitants of the colonies and depen- 
dencies of the United States, legally limiting the United 
States in the exercise of its plenary powers to administer 
these regions and their populations. As it is needful to 
apply all these principles in the fulfillment of the agency, 
this statement in no way interferes with the plenary 
powers of the United States in this respect. This state- 
ment, formulated by the President through the Secre- 
tary of War in 1900, was originally promulgated in the 
instructions of April 7, 1900, to the Philippine Commis- 
sion. It was substantially followed by Congress in the 
Philippines government act of July I, 1902, and was 
approved by the Supreme Court as a general or uni- 
versal bill of rights in Kepner v. United States, 195 
U.S., 100, 122, 123. The preamble and statement are 
as follows: 


In all the forms of government and administrative pro- 
visions which they are authorized to prescribe, the commis- 
sion should bear in mind that the government which they 
are establishing is designed not for our satisfaction or for 
the expression of our theoretical views, but for the happi- 
ness, peace, and prosperity of the people of the Philippine 


60 The Question of Aborigines 


Islands; and the measures adopted should be made to 
conform to their customs, their habits, and even their 
prejudices to the fullest extent consistent with the accom- 
plishment of the indispensable requisites of just and effec- 
tive government. 

At the same time the commission should bear in mind and 
the people of the islands should be made plainly to under- 
stand that there are certain great principles of government 
which have been made the basis of our governmental sys- 
tem, which we deem essential to the rule of law and the 
maintenance of individual freedom, and of which they have 
unfortunately been denied the experience possessed by us; 
that there are also certain practical rules of government 
which we have found to be essential to the preservation of 
these great principles of liberty and law; and that these 
principles and these rules of government must be estab- 
lished and maintained in their islands for the sake of their 
liberty and happiness, however much they may conflict 
with the customs or laws or procedure with which they are 
familiar. . 

Upon every division and branch of the government of 
the Philippines, therefore, must be imposed these inviolable 
rules: / 

That no person shall be deprived of life, liberty, or prop- 
erty without due process of law; 

That private property shall not be taken for public use 
without just compensation; 

That in all criminal prosecutions the accused shall enjoy 
the right to a speedy and public trial, to be informed of the 
nature and cause of the accusation, to be confronted with 
the witnesses against him, to have compulsory process for 
obtaining witnesses in his favor, and to have the assistance 
of counsel for his defence; 

That excessive bail shall not be required, nor excessive 
fines imposed, nor cruel and unusual punishment inflicted; 

That no person shall be put twice in jeopardy for the 
same offence or be compelled in any criminal case to be a 
witness against himself; 


Powers Over Tribes and Colonies 61 


That the right to be secure against unreasonable searches 
and seizures shall not be violated; 

That neither slavery nor involuntary servitude shall exist 
except as a punishment for crime; 

That no bill of attainder or ex post facto law shall be 
passed; 

That no law shall be passed abridging the freedom of 
speech or of the press or the right of the people to peaceably 
assemble and petition the Government for a redress of 
grievances; 

That no law shall be made respecting an establishment 
of religion or prohibiting the free exercise thereof; and 

That the free exercise and enjoyment of religious pro- 
fession and worship, without discrimination or preference, 
shall forever be allowed. . 


The Congress, by special legislation, makes such 
dispositions of jurisdiction and soil in the colonies and 
dependencies as it deems proper, and also such rules 
and regulations concerning civil rights of person and 
property as it may deem needful, subject to the con- 
stitutional limitations above mentioned. During the 
period of acquisition and pacification the Congress dele- 
gates plenary powers to the President, who conducts 
military government, or civil government under mili- 
tary rule, until the pacification is complete. The Con- 
gress then provides for each colony or dependency an 
organic law, which forms the written constitution of 
the particular colony or dependency, delegating to the 
local administration such powers as it deems needful. 
In the organic law, or by subsequent amendments, or 
by special laws, the Congress regulates all such matters 
as it deems needful to so regulate; and the action of 
Congress, within the constitutional limitations, is the 
supreme law of the land for each colony or dependency. 
The Congress, after pacification, delegates to the Presi- 


62 The Question of Aborigines 


dent such powers as it sees fit, it apparently being the 
doctrine at the present time that the grant of “‘the 
executive power’’ to the President does not include a 
sublegislative power, under the superintendence of the 
legislature, over the colonies and dependencies, for the 
fulfillment of the fiduciary relationship of the United 
States toward them. (Cf. Lincoln v. United States, 
202 °U.)5.7484 

It is accepted without question that the grant of 
‘“‘the judicial power” of the United States to the Su- 
preme Court and such inferior courts as the Congress 
may from time to time ordain and establish (Art. ITI, 
sec. 1), and the definition of the judicial power as 
extending to cases “arising under the Constitution, 
the law of the United States, or treaties’? (Art. III, 
sec. 2), authorizes the Supreme Court and the courts 
established by Congress to hear and determine cases 
involving the relations with or matters arising in the 
colonies and dependencies, and authorizes Congress to 
establish a court or courts in the United States having 
appellate jurisdiction over the courts in colonies or 
dependencies. 

Alaska and Hawaii have a status similar to that of 
the former “‘organized Territories’? contiguous to the 
Union, and are in charge of the Secretary of the Interior, 
the education of the aborigines being under the direc- 
tion of the Bureau of Education; the Philippines, 
Porto Rico, and San Domingo (the latter during the 
“customs receivership’’) are in charge of the Secretary 
of War, through the Bureau of Insular Affairs; the 
Panama Canal Zone is in charge of the Panama Canal 
Office in Washington; and the Virgin Islands, Tutuila, 
Guam, the Wake Islands, and Midway Island are in 
charge of the Secretary of the Navy. 

By the original Philippines Government act of July 1, 


Powers Over Tribes and Colonies 63 


1902, the non-Christian aboriginal tribes in the Philip- 
pines were placed under the exclusive jurisdiction of 
the Philippine Commission. By the act of August 29, 
1916, this jurisdiction is transferred to the Philippine 
legislature, these tribes being represented in the 
Philippine senate by senators appointed at large by the 
governor-general. The act also prescribes the mainte- 
nance of a Bureau of Non-Christian Tribes. This 
bureau is under the direction of the Philippine secretary 
of the interior. 


GREAT BRITAIN 


In Great Britain the accepted doctrine seems to be 
that the Parliament of Great Britain has supreme 
legislative power without legal limitation, not only 
within the domestic territory of the State, but over and 
within all the colonies and dependencies, and that by 
custom Parliament exercises this power according to 
certain traditional fundamental principles, within limi- 
tations determined by itself and according to its views 
of the local needs and the requirements of the general 
welfare. This doctrine was declared by act of Parlia- 
ment as respects the American Colonies in 1766. By 
the declaratory act passed simultaneously with the act 
repealing the stamp act it was asserted as the funda- 
mental principle of the relationship between Great 
Britain and the Colonies that the Parliament ‘‘had, 
hath, and of right ought to have, full power and au- 
thority to make laws and statutes of sufficient force and 
validity to bind the Colonies and people, subjects of 
the Crown of Great Britain, in all cases whatsoever.’’ 
The question between Great Britain and the Colonies, 
as it was finally formulated in 1776, was whether Great 
Britain had a power of supreme legislation over them 


64 The Question of Aborigines 


in all cases whatsoever—a legally unlimited power—or 
a plenary power as the agent and fiduciary of the Colo- 
nies to legislate as might be needful to preserve a 
mutually beneficial relationship between all parts of 
the Empire and between the Empire and the rest of 
the world. Great Britain in 1778 offered to adopt the 
American theory in practice but was unwilling to accept 
it as a statement of the law of nations. This has appar- 
ently ever since been the position taken by Great 
Britain. The supreme legislative power of Great 
Britain over its colonies and dependencies is in fact 
exercised as it would be if it were recognized as a fidu- 
ciary power limited by the British constitution and the 
law of nations to the needs of the situation, but plenary 
for the accomplishment of the object of all colonization, 
which is the extension of civilization; but though in 
fact so exercised, it is still regarded as exercised under 
limitations which are not imposed by any law but which 
are wholly self-imposed. 

Alpheus Todd, in his book on ‘‘Parliamentary Gov- 
ernment in the British Colonies,’ makes the following 
statements regarding the power of Parliament over the 
colonies and dependencies (pp. 26, 172) : 


As a matter of abstract right, the mother country has 
never parted with the claim of ultimate, supreme authority 
for the imperial legislature. . 

The colonial possessions of the British Crown, however 
acquired and whatever may be their political consti- 
tution, are subject at all periods of their existence to 
the legislative control of the imperial Parliament. But in 
practice, especially in the case of colonies enjoying repre- 
sentative institutions and responsible government, the 
mother country, in deference to the principle of self-gov- 
ernment, has conceded the largest possible measure of local 
independence and practically exerts its supreme authority 


Powers Over Tribes and Colonies 65 


only in cases of necessity or when imperial interests are 
at stake. 


The power of the British King in council (the British 
Crown) respecting the administration of the colonies is 
held to be a legally limited power. The legal limitations 
under which the King in council acts in the administra- 
tion of colonies and dependencies under the British con- 
stitution and the law of nations were declared in 1774 
by the Court of King’s Bench, speaking by Chief 
Justice Mansfield, in the test case of Campbell v. Hall, 
Cowper, 204. In that case it was held that the King 
in council had legislative power over and in the colonies 
and dependencies, but that, inasmuch as this power 
was “‘subordinate to his own authority as a part of the 
supreme legislature,’ he was legally limited in the 
exercise of this power, so that he could not make any 
law for any colony or dependency, by order in council 
or otherwise, which was “‘contrary to fundamental 
principles’ or which should attempt to make any ex- 
ception ‘‘from the laws of trade or the authority of 
Parliament” or to grant ‘‘privileges exclusive of his 
other subjects.” It was also held that the subordinate 
legislative power of the King in council ceased alto- 
gether as respects a given colony at the moment this 
colony received a charter providing for its self-govern- 
ment under representative institutions, even though 
this charter was itself granted by order in council. 

Mr. Todd, in the book above mentioned, thus de- 
scribes the power of the King in council over the colo- 
nies and dependencies (pp. 125-128) : 


The right of the Crown, as the supreme executive au- 
thority of the Empire, to control all legislation which is 
enacted in the name of the Crown in any part of the Queen’s 
dominions is self-evident and unquestionable. . . . 

5 


66 The Question of Aborigines 


In respect of the colonies, the royal veto upon legislation 
has always been an active and not a dormant power. The 
reason of this is obvious. A colony is but a part of the Em- 
pire, occupying a subordinate position in the realm. No 
colonial legislative body is competent to pass a law which is 
at variance with or repugnant to any imperial statute 
which extends in its operation to the particular colony. 
Neither may a colonial legislature exceed the bounds of its 
assigned jurisdiction or limited powers. Should such an 
excess of authority be assumed, it becomes the duty of the 
Crown to veto or disallow the illegal or unconstitutional 
enactment. . ; 

The Crown, moreover, is the chief executive authority of 
the Empire and the instrument for giving effect to the 
national will, as the same has been embodied in the acts of 
the imperial Parliament or sanctioned by Parliament upon 
the advice of responsible ministers. . 

Furthermore, the Crown occupies toward the colonial 
dependencies of the Empire a paternal relation, which, at 
least in the earlier stages of their political existence, justifies 
and requires that the mature experience and enlarged 
political insight of the statesmen who guide public affairs 
in the mother country should be utilized to the benefit of 
their fellow subjects in the colonies while they are gradu- 
ally attaining to a knowledge of the practical business of 
legislation in their limited sphere. . 

It is evident that the prerogative, by virtue of which the 
Crown is authorized to supervise and control the acts of 
all subordinate legislatures throughout the Empire, is held 
for the especial benefit of the colonies as well as for the 
security of the nation at large. . 

Subject, however, to the constitutional oversight and 
discretion of the Crown—by which all colonial legislation 
is liable to be controlled and annulled, if exercised unlaw- 
fully or to the prejudice of other parts of the Empire—com- 
plete powers of legislation appertain to all duly constituted 
colonial governments. Every local legislature, whether 
created by charter from the Crown or by imperial statute, 


Powers Over Tribes and Colonies - 67 


is clothed with supreme authority, within the limits of the 
colony, to provide for the peace, order, and good government 
of the inhabitants thereof. This supreme legislative au- 
thority is subject, of course, to the paramount supremacy 
of the imperial Parliament over all minor and subordinate 
legislatures within the Empire. 


The judicial power of Great Britain, which by the 
British constitution is regarded as vested in the British 
Crown, is, so far as supreme jurisdiction in cases of a 
legal nature arising in the colonies or out of the colonial 
relationship are concerned, vested in a judicial com- 
mittee of the privy council. Mr. Todd says, regarding 
this tribunal (pp. 220, 221) : 


The sovereign, as the fountain of justice, is constitu- 
tionally competent to receive petitions and appeals from 
all her colonies and possessions abroad, upon whatever 
regulations and conditions may be defined and imposed by 
the authority of the Crown in council. 

Such petitions or appeals are referred to the consideration 
either of the judicial committee of the privy council, or of 
some other committee of that body, upon whose report 
the decision of the sovereign is pronounced. The reference 
may be made either upon appeal from an inferior colonial 
court or on a petition or claim of right or on a petition 
praying for the redress of a grievance that is not within 
the prescribed jurisdiction of other courts or departments 
of state but which the Crown is willing to entertain. 


The organic acts for colonies and dependencies may 
be made by order in council or by statute of the British 
Parliament. An organic law made by statute necessa- 
rily supersedes any charter granted by order in council. 
The organic laws of the Dominion of Canada, the 
Commonwealth of ‘Australia, and the Union of South 
Africa were made by such statutes. 


68 The Question of Aborigines 


Aboriginal tribes in non-self-governing colonies and 
in the other dependencies are under the administration 
of the Crown by orders in council or by regulations 
made by the local governors under authority delegated 
to them by order in council and subject to supervision 
and disapproval by the Crown. In several of the 
British colonies the office of protector of the aborigines 
has been instituted, the office being in some cases con- 
‘ferred on a single official and in others on a commission 
or board. ‘These officials or boards have in some cases 
been made responsible to the home Government, in 
some cases to the governor, in some cases to both. 
While this arrangement has not been without some good 
results, the conclusion seems to be that in non-self- 
governing colonies the concentration of responsibility 
for the aborigines in the hands of the home Govern- 
ment, acting through the colonial secretary and the 
local governor, works for their best interests. This 
arrangement involves great care in the selection of those 
colonial governors who have to deal with aboriginal 
tribes, so that they shall be humane, sympathetic, and 
at the same time firm; the delegation to them of plenary 
power; and the support of them by an armed constabu- 
lary force adequate to enable them to enforce their just 
commands with certainty and promptness and thus to 
preserve the dignity and prestige of the State as at once 
the guardian and the sovereign. 

self-governing colonies insist upon managing their 
own relations with the aboriginal tribes, claiming this 
right under the law of nations as an incident of self- 
government. This principle was finally settled in 1898 
in the case of Western Australia. (Correspondence 
relating to the Aborigines, Western Australia, British 
Parliamentary Papers, 1897, vol. 6, Cd. 8350; ib., 1899, 
vol. 55, Cd. 5743.) 


Powers Over Tribes and Colonies 69 


In the early days, under self-government in the 
Australian colonies, the aborigines were substantially 
extinguished, and in the colonies of southern Africa 
the contact between the Europeans and the aboriginal 
tribes would doubtless have been equally disastrous for 
the latter had not their numbers and the nature of the 
climatic conditions permitted them to survive. The 
aboriginal tribes of New Zealand suffered severely in 
their contact with the self-governing British colonies 
there. In modern times it would appear the self- 
governing British colonies have accepted with seriousness 
the responsibility of guardianship of aborigines with re- 
gard to which plenary power is now delegated, and have 
taken carefully deliberated and suitable measures to 
fulfill their duties in this respect. (See British Parlia- 
mentary Papers since 1895. Native Affairs in the 
Respective Colonies, passim.) 

Modern publicists in Great Britain and in its colonies 
tend, with increasing emphasis, to regard the relation- 
ship of the State to its colonies and dependencies as 
having a jural character not wholly or even principally 
determined by the British constitution. The relation- 
ship is commonly spoken of as a ‘‘trusteeship”’ for the 
colonies, and the necessary implication: is that this 
trusteeship arises under a law. This law can only be 
the law of nations or a constitutional law which the 
British Empire itself has evolved as distinct from the 
constitution of Great Britain. (The Administration of 
Dependencies, by Alpheus H. Snow, pp. 532-536.) 


FRANCE 


In France, by the constitution of 1791, the colonies 
were declared not to be “‘comprised in the constitution.” 
By the constitution of 1794 they were declared to be 


70 The Question of Aborigines 


“integral parts of the Republic’ and “‘subject to the 
same constitutional law.’’ The constitution of 1800 
provided that “‘the régime of the colonies shall be 
determined by special laws.’’ In 1802 the French 
Legislature delegated all this power to Napoleon 
by a statute which provided that ‘‘the régime of 
the colonies is submitted for ten years to the regula- 
tions which shall be made by the Government.’’ The 
constitution of 1814 provided that “‘the colonies shall 
be ruled by particular laws or regulations.’’ In the 
constitution of 1830 it was provided that ‘‘the colonies 
shall be governed by particular laws.’’ In the consti- © 
tution of 1848 the provision was as follows: 


The territory of Algeria and the colonies is declared 
French territory, and shall be ruled by particular laws until 
a special law places it under the régime of the present 
constitution. 


(The Administration of Dependencies, by Alpheus 
H. Snow, pp. 474-479.) 

The constitution of 1852, under the third Empire, 
provided (art. 27) that the Senate should ‘‘regulate by 
a sénatus-consulte the constitution of the colonies.” 
The Senate (art. 25) was made ‘‘the guardian of the 
fundamental pact and the public liberties.’’ It was 
required (art. 26) ‘‘to oppose itself to the promulgation 
of laws repugnant to or inconsistent with the constitu- 
tion, or with religion, morality, liberty of worship, 
individual liberty, the equality of citizens before the 
law, the inviolability of property, or the principle of 
the unremovability of magistrates.” 

The Emperor (art. 6) was declared to be the chief 
of the State, with power ‘‘to command the land and 
sea forces, to declare war, make treaties of peace, 
alliance, and commerce, to name all officials, and to 


Powers Over Tribes and Colonies 71 


make regulations and decrees for the execution of the 
laws.” (Bulletin des Lois, 1852, 1”° semestre, p. 60.) 

By a sénatus-consulte of 1854, the Senate, with the 
concurrence of the Emperor, made an organic law for 
Martinique, Guadaloupe, and Réunion, by which these 
colonies (secs. 4 and 6) were placed in some respects 
under the régime of sénatus-consultes, and in some 
respects under the control of the Emperor, his power 
being exercised by regulations. The other colonies 
(sec. 18) were to be regulated by decrees of the Emperor, 
“until there shall have been a determination in respect 
to them made by sénatus-consulte.”’ 

As the constitutional laws of France passed since the 
beginning of the Republic in 1875 have not made any 
provision concerning administration of the colonies and 
dependencies, the principles established by the consti- 
tution of 1852 have been ever since followed. 

Arthur Girault, in an introduction to the collection 
of the organic laws of the French colonies in Lozs 
Organiques des Colonies, published in 1906 by the Jnstz- 
tut Colonial International of Brussels (pp. 14-16), 
says: 


As respects the colonies of the first grade (grandes colo- 
nies), this sénatus-consulte gives certain guaranties, since it 
specifies the cases in which a law or a sénatus-consulte shall 
be necessary to effect legislation concerning them. More- 
over, it grants to each of them a council general, whose 
powers in financial and tariff matters were largely increased 
by the sénatus-consulte of July 4, 1866. . . . As regards 
the secondary establishments, no guaranty is accorded to 
them; they are subjected in an absolute manner to the 
régime of decrees. (Art. 18 of the sénatus-consulte of 1854.) 

Guiana, which it was desired to make a penal colony, 
passed in 1854 from the category of colonies of the first 
grade into that of secondary establishments. This second 


72 The Question of Aborigines 


category was soon enlarged by reason of the acquisition of 
New Caledonia and Cochin China. At the same time 
Senegal was extended into the interior. Hence arose an 
anomaly which has become more emphasized under the 
third Republic, and which constitutes the great vice (le 
grand vice) of the legislative régime of the French colonies— 
little islands considered as colonies of the first grade, 
enjoy guaranties refused to immense territories treated by 
legislation as secondary establishments. 


Referring to the establishment of the ministry of the 
colonies by statute of the French Parliament in 1894, 
and the subsequent tendency toward government with- 
out constitutional guaranties, he says: 


Attention was turned toward the three great parts of 
our colonial empire—Indo-China, Madagascar, and French 
West Africa. At the head of each of these colonies was 
placed a governor general to whom was granted a very 
great power of initiative, and very extensive powers, with- 
out counterpoise. This system of government has succeeded 
thus far by reason of the high character of the men whom 
the Government of the Republic has made in some sense 
viceroys. But it has the possibility of becoming singularly 
dangerous iri the future. 

The organization of the immense colonies acquired under 
the third Republic is contained entirely in the decrees 
promulgated under section 18 of the sénatus-consulte of 
1854, which has reference to secondary establishments. 
The sénatus-consulte of 1854, although it has lost its con- 
stitutional validity since the fall of the Empire, has always 
remained in force, the Chambers not having voted a con- 
stitution for the colonies. There is thus a very serious 
hiatus (lacune) [in French public law]; the régime of decrees 
offering no guaranty against arbitrary rule. Unfortunately 
there has never been up to this time any serious discussion 
in regard to supplying the omission. 


Powers Over Tribes and Colonies 73 


The French Parliament, though it abstains by a con- 
stitutional custom from interposition by statute in the 
administration of colonies and dependencies, exercises 
a considerable supervision by reason of its control of 
financial legislation and the exercise of the right of 
interpellation of ministers. 

By statute of the French Parliament of February 24, 
1875, Martinique, Guadaloupe, Réunion, and French 
India were given each a senator in the French Senate. 
By the law of June 16, 1885, Cochin China was given 
two deputies in the lower house of France, Guadaloupe 
two, French Guiana one, French India one, Martinique 
two, Réunion two, and Senegal two. (Lois Organiques 
des Colonies, published by the Institut Colonial Inter- 
national, 1906, vol. 2, pp. 44, 45.) 

There is attached to the office of the minister for 
the colonies, a superior council for the colonies, com- 
posed, according to the decree of September 19, 1896, 
of two senators and two representatives of the self- 
governing colonies, representatives of the chambers of 
commerce in the leading cities of France, and certain 
specified high officials in the colonial and foreign offices. 

The ancient doctrine that the colonies and dependen- 

ies are outlying provinces or territories of the State 
seems still to be accepted by official France. The 
differences between the administration of the domestic 
territory and population of France and that of the 
colonies and dependencies are attributed to differences 
in the local circumstances. The French writers until 
recently have regarded the relationship of the colonies 
and dependencies to France as wholly a constitutional 
one and have not considered it as a relationship under 
the law of nations. There are signs, however, that this 
doctrine is being undermined by criticism and that it is 
to be sooner or later supplanted by one more correct 


74 The Question of Aborigines 


and scientific. Thus, for example, Jules Harbord, in 
his book on Domination et Colonisation, published in 
1910, contends that the power exercised by France out- 
side its domestic territory is a power of domination, 
which, by reason of its absolutistic nature, can be 
exercised by a republic as a matter of right only in case 
the republic recognizes that its absolutism implies a 
fiduciary relationship and actively engages itself in the 
education and guidance of the people of the colonies 
and dependencies so as to develop the aborigines and 
bring about an association between them and the colo- 
nists on terms just to both. There are in France sev- 
eral modern writers who adopt this line of reasoning 
concerning the nature of the power of a State over its 
colonies and dependencies. ‘These writers treat the 
relationship of a State to the aboriginal tribes as a mani- 
festation of its general fiduciary relationship to all its 
colonies and dependencies, the trusteeship increasing in 
intensity with respect to aborigines and becoming a 
guardianship by reason of their greater needs. 


THE NETHERLANDS 


In the Netherlands the constitution (arts. 61 and 62) 
provides as follows: 


The King exercises the supreme administration (opper- 
bestuur) of the colonies and possessions of the Kingdom in 
the other parts of the world. Rules concerning the govern- 
mental administration of these countries are prescribed by 
statute. Their monetary system is regulated by statute. 
Other questions concerning the colonies and possessions are 
regulated by statute when there appears to be need for 
such action. ; 

Each year the King causes to be presented to the States 
General a detailed report regarding the administration of 


Powers Over Tribes and Colonies 75 


the colonies and possessions and the situation of each of 
them, The method of administering and auditing the finan- 
cial resources are regulated by statute. 

(Lois Organiques des Colonies (Institut Colonial Inter- 
national), vol. 3, p. 145.) 


For the Netherlands East Indies the States General 
have established an organic law (Regeerings-Reglement). 
This law, in 132 articles, was enacted in 1854 and is 
still in force substantially unaltered. The States Gen- 
eral also adopted at about the same time an organic 
law for Surinam in 169 articles, which, with amendments 
made in 1884, 1901, and 1903, is stillin force. (lb., pp. 
146-330.) 

The King, in making ordinances, acts through a 
minister of the colonies and by his advice and that of 
the other members of the Cabinet. The relations with 
the aborigines in the Netherlands East Indies are for 
the most part regulated by the governor general, acting 
with the advice of a local council, called the Council of 
the Indies. This council is chosen by the King and acts 
under regulations made by him. Its sessions may be 
private or public. The governor general is obliged to 
consult the council as respects certain specified im- 
portant matters and may call them into consultation on 
any subject. (Jb., 138, 139, 152, 169.) 


BELGIUM 


The Belgian constitution of 1830 made no mention of 
colonies, and so long as it remained in force it was 
doubted whether Belgium could acquire and govern 
possessions beyond the seas. By the constitution of 
1893 it was provided (art. 1) as follows: 


The colonies, overseas possessions, or protectorates which 
Belgium may acquire are regulated by special statutes. 


76 The Question of Aborigines 


Belgian troops intended for the defense of such regions can 
be recruited only by voluntary engagement. (L’Organtsa- 
tion Coloniale Belge, by Charles de Lannoy, 1913, p. 17.) 


M. de Lannoy asserts that the effect of the provision 
of the constitution above quoted is “‘that the colonies 
do not have the benefit of the constitutional guaran- 
ties,’ and that ‘‘a Belgian statute is applicable in the 
colonies only when made so applicable by a decision of 
the legislative body, which is in fact itself a colonial 
statute.” 

Belgium acquired the independent State of the Congo 
as a colony on September 9, 1908, and simultaneously 
the Legislature enacted an organic law for Belgian 
Congo called ‘‘the colonial charter.” (Jb., p. 16. For 
text of the charter see the same volume, pp. 289-303.) 

The colonial charter declares that the Belgian Congo 
has ‘“‘a personality distinct from that of [Belgium].”’ 
It allows the colony to use the flag and seal of the 
Independent State of the Congo. (d., pp. 289, 303.) 

M. de Lannoy thus describes the organs of legislation 
of Belgian Congo and their functions: 


Article 7 of the colonial charter proclaims that statutes 
[enacted by the Belgian Legislature] are the supreme law 
on every subject [with which they deal] la lot intervient 
souverainement en toute matiére. But this does not mean 
that the Parliament must itself enact the multifarious laws 
which the government of a colony requires. . . . As the 
delegates of the Belgian Nation, it is for deputies and sena- 
tors to intervene in the affairs of Belgian Congo only to 
the extent that the interests of their constituents require— 
that is to say, to the extent that the acts of the colonial 
administration may engage Belgium financially or morally. 
If they go beyond that, they transform themselves into 
administrators and undertake a task which persons who 
make it their career are far better fitted to perform. 


Powers Over Tribes and Colonies 77 


It is then not contrary to the principles of representative 
parliamentary government, and it is indispensable to the 
success of colonization to give to the chief executive plenary 
powers and consequently to add to those which he exercises 
in the domestic territory of the nation the legislative power, 
reserving to the Parliament the right of intervening to 
safeguard, in a given case, the interests of the nation. 
This is the system adopted by Belgium, as also by the 
majority of the colonizing powers. ‘“‘The King,” says 
article 7 of the colonial charter, ‘exercises the legislative 
power by way of decrees, except as respects those subjects 
which have been regulated by statute.” . 

The King must, therefore, exercise in person the legisla- 
tive power which is delegated to him. The only exception is, 
that he may authorize the governor general, though only 
when the matter is urgent, to suspend temporarily the exe- 
cution of decrees and make ordinances having the force of 
law. 


Speaking of the colonial council, which is established 
by the colonial charter to advise the King in making 
decrees, M. de Lannoy says: 


The selection, organization, and operation of the council 
are regulated as follows (Charter, arts. 24 and 25; statutes 
of Mar. 29, 1911, and Dec. 9, 1912): 

The colonial council is composed of the minister of the 
colonies as president and 14 councilors; the president hav- 
ing a vote, and in case of a tie the casting vote. A vice 
president selected by the King from among the members of 
the council presides in his absence. Eight councilors are 
selected by the King. Six are chosen by the legislative 
chambers—three by the Senate and three by the Chamber 
of Deputies by secret ballot and majority vote. One of 
the councilors named by the King and one of those named 
by the two chambers alternately retires each year. . 

The functions of members of the Chamber of Deputies or 
of the Senate are incompatible with their participation in 


78 The Question of Aborigines 


the council. No official of the colonial administration is 
permitted to serve on it. 

The council gives its opinion in the form of a reasoned 
report, within a time fixed by its organic regulations. The 
report shows the number of the dissentients and the reasons 
of their dissent. 

The charter gives to the council noright . . . toinform 
Parliament by an annual report of the comments which 
the operations of the administration and its manner of 
executing the statutes may suggest. . . . It is in the 
reports of the council attached to decrees and its published 
deliberations and resolutions that the representatives of 
the nation must search for information on these subjects. 


The colonial charter (art. 6) established a special 
commission for the protection of the aborigines, having 
as one of its functions to make suggestions to the King 
regarding legislation for the aborigines. This council 
consists of an indefinite number of persons, is presided 
over by the attorney general attached to the court of 
appeals at Brussels, and is required to meet at least 
once a year. ‘This commission holds its sessions at 
places determined by its president and is composed of 
leading members of the European part of the popula- 
tion of the colony—administrative officials, clergymen, 
judges, merchants, and planters. Inasmuch as the dis- 
trict of Katanga has since 1910 a government of its own, 
so that now “‘the [Belgian] Congo is divided into two 
independent governments,” the commission tends not 
to exercise a surveillance over Katanga, and de Lannoy 
recommends a second commission having surveillance 
over that district exclusively. (1b., 291, 254-258.) 

The colonial charter (art. 5) requires the governor 
general to watch over the mental and moral well-being 
of the aborigines, using the language of the Berlin 
African act. The function of the King in legislating for 


Powers Over Tribes and Colonies 79 


the aborigines is supplemented by the provision of the 
colonial charter, which keeps alive a great body of the 
customary law of the aboriginal tribes. This provision 
(art. 4) is as follows: 


Aborigines of Belgian Congo who have not been natural- 
ized enjoy the civil rights which are recognized as belonging 
to them by the legislation of the colony and by their cus- 
toms, in so far as these customs are not contrary to the 
colonial legislation or to the public order. Aborigines of 
neighboring countries who have not been naturalized are 
assimilated to [those of Belgian Congo in this respect]. 
(Ib., p. 290.) 


M. de Lannoy, speaking of this part of the colonial 
law, which exists without the intervention of the organs 
of the Belgian State, says: 


The unwritten or customary law has in Belgian Congo a 
vast field of action. It regulates, and will for a long time 
yet continue to regulate, the greater part of the relations 
of the aborigines with each other, and in some cases the 
relation between aborigines and nonaborigines. It forms 
the ordinary source of the civil law for the aborigines who 
have not been naturalized. 


ITALY 


In Italy the constitution makes no mention of colo- 
nies. It establishes the method of organizing the legis- 
lature, executive, and judiciary, but does not prescribe 
their powers. (Modern Constitutions, by W. F. Dodd, 
vol. 2, pp. 5-16.) 

In 1882, when Italy first acquired possessions in 
eastern Africa, the Italian Parliament enacted a statute 
giving these possessions the name of Erythraea, and 
declaring that ‘‘there is hereby established on the west 


80 The Question of Aborigines 


coast of the Red Sea an Italian colony subject to the 
sovereignty of Italy (una colonia italiana sottoposto alla 
sovranita dell’ Italia), the exact territory being specified. 
It was provided that all the legislative, administrative, 
judicial, and economic affairs of the colony should be 
governed by royal or ministerial decrees, according to 
the importance of the subject matter, the regulations 
to be such as should be adapted to the local conditions, 
and authority was given to change these rules according 
to the results of experience. It was also provided that 
the religious beliefs and practices of the aboriginal in- 
habitants should be respected, and that their personal 
status, family and matrimonial relations, succession, 
and all their civil relations should be regulated by their 
own customary law, so far as it was not inconsistent 
with universal morality or the public order, or in viola- 
tion of an express act of legislation made by the Italian 
authorities. 

In 1903 a new organic law was passed by the Italian 
Parliament. By this act a colonial council was created 
in connection with the ministry of foreign affairs, and 
the King, by advice of the governor of the colony and 
the colonial council, was given legislative power in 
subordination to the Italian Parliament, in all matters 
not affecting the personal and family status of Italians. 
As regards the aborigines the following provision was 
made: 


The personal status of the aborigines and their relations 
of private law are regulated according to the local cus- 
toms, religions, and races. The aborigines are to continue 
to be subject to the special penal law, based upon local 
customs, except so far as modifications shall be made 
in this law by decree of the governor, containing a 
statement of the reasons on which they are based (decrét 
motivée), 


Powers Over Tribes and Colonies 81 


The colonial council was composed of three members 
ex officio—the under secretary of state for foreign affairs 
as president, the director of the colonial office, and the 
commissioner of emigration—an officer of the army or 
navy of high rank, an official of high rank in the treasury 
department, and six members “‘of recognized compe- 
tence, who have had administrative experience, nomi- 
nated by the secretary of foreign affairs and elected by 
the council of ministers.’’ Provision was also made for 
calling experts in special matters to sit in the council 
without vote. 

(Lois Organiques des Colonies (Institut Colonial Inter- 
national), vol. 3, pp. 400-403.) 


SPAIN 
In Spain the constitution (art. 89) provides as follows: 


The colonies shall be governed by special laws, but the 
Government is authorized to apply to them, with the modi- 
fications which it may think proper, the laws promulgated 
or which may be promulgated for the peninsula, giving an 
account to the Cortes. 


As respects the power of the King, it is provided 
(arts. 50 and 54) as follows: 


The power of executing the laws shall be vested in the 
King, and his authority shall extend to everything which 
conduces to the preservation of public order at home and 
the security of the State abroad, in conformity with the 
constitution and laws. 

The King shall also have power to issue decrees, regula- 
tions, and instructions which may be conducive to the 
execution of the laws. 

(Modern Constitutions, by W. F. Dodd, vol. 2, p. 210. 

6 


82 The Question of Aborigines 


Of the few remaining islands and colonies of Spain the 
Canary Islands have the status of a domestic province 
under a statute enacted in 1912. The Spanish colony 
on the west coast of Africa, the islands near the coast, 
and the Spanish zone in Morocco are governed by 
decrees of the King, and by regulations of the local gov- 
ernors under delegation of power made by the King. 

(Spanisches Staatsrecht, by Adolfo Posada, 1914, p. 
184.) (Statesman’s Year-book, 1918, pp. 1284—1285.) 


PORTUGAL 


The constitution of the Portuguese Republic, adopted 
in I9QII, provides (secs. 67, 84) as follows: 


In the administration of the overseas Provinces the régime 
of decentralization shall prevail, under special statutes ade- 
quate to the state of civilization of each of them (adequadas 
ao estado de civilagéo de cada uma dellas). 

The first Congress of the Republic shall elaborate and 
enact the following laws: . . . (d) The organic laws of 
the overseas Provinces. 

(Revue de Droit Public, vol. 29, pp. 775-791.) 


By article 26 of this constitution the Congress of the 
Republic is given the exclusive power of ‘‘making laws, 
and of interpreting, suspending, and abrogating them,” 
and by article 47 the President is empowered to “‘make 
decrees, instructions, and regulations necessary to the 
proper execution of the laws’’; the Congress being 
given also the power (art. 26) to “‘sanction the regula- 
tions decreed in execution of the laws.” 

Marnoco e Souza, in his commentaries on this con- 
stitution, published in 1913 (pp. 594-604), in reference 
to these provisions, holds that they delegate a limited 
legislative power to the President in subordination to 


Powers Over Tribes and Colonies 83 


the Congress, and that the Congress may, by its legis- 
lation in the form of organic acts, create local repre- 
sentative legislatures in the colonies or confer such local 
legislative powers as it may see fit upon colonial 
governors. 


JAPAN 


The constitution of Japan contains no reference to 
the administration of colonies. 

(The Political Development of Japan, by G. E. 
Uyehara, I910, pp. 277-284.) 

The Parliament enacts special laws for the colonies, 
including organic acts. Subject to the supreme power 
of the Parliament, the Emperor has power to decree 
ordinances. In Formosa, the Japanese Parliament has 
delegated the local legislative power to the governor 
general in council, his ordinances being reported to the 
minister for the colonies to be laid before the Emperor 
for his sanction. 

(Japanese Rule in Formosa, by Gosaburo Takikoshi, 
1907, Pp. 32, 37, 232-234.) 

In Formosa, the relations with the aborigines are 
in charge of a bureau of aboriginal affairs, which has 
performed the national duty of guardianship by “‘a 
method of pressure and conciliation, alternately ap- 
plied.”’ 

(Report of the Bureau of Aboriginal Affairs of For- 
mosa for IQII, p. 7.) 

(Japan: The Rise of a Modern Power, by Robert P. 
ROLLED, LOLS, pa2aee) 


CHAPTER V 


THE RELATION BETWEEN THE POWER OVER ABORIGINAL 
TRIBES AND THE POWER OVER COLONIES GENERALLY 


(Continued) 


GERMANY 


HE constitution of Germany in force in 1884 when, 
by reason of the acquisition of large districts of 
territory in Africa it became necessary to establish 

a system of colonial administration, contained the fol- 
lowing provisions concerning administration of territory 
and populations outside the domestic territory of 
Germany (Art. IV, secs. I, 7). 


The following matters are subject to the supervision of 
the Empire (Reich) and to its legislative power: 

Regulation . . . of colonization and emigration to 
lands external to Germany (ausserdeutschen Lander). . . 

The establishment of a general system of protection 
(eines gemeinsamen Schutzes) of German trade in foreign 
countries, of German navigation, and of the German flag 
on the high seas; and of a common consular representation 
(vertretung), which shall be established by the Empire 
(Reich). 

The presidency of the union (das prasidium des Bundes) 
is vested in the King of Prussia. Whoever is King of Prussia 
bears the title of German Emperor. The Emperor is to 
represent the Empire (Rezch) in all its relations under the 
law of nations (Vélkerrechtlich) ; and in the name of the 
Empire to declare war and conclude peace, to enter into 


84 


Powers Over Tribes and Colonies 85 


alliances and other treaties with foreign States and to 
accredit and receive ministers. 


These provisions are not regarded by leading German 
publicists as the source of the power of the State to 
acquire and govern colonies and dependencies; this 
power being regarded as an incident of the sovereignty 
of the State. 

(Die Rechtsverhdltnisse der Deutschen Schutzgebiete, 
by Karl von Stengel (1901), pp. 32, 33.) 

(Einftihrung in die Kolonialpohtik, by Otto Kobner, 
1908, pp. 71 to 85.) 

In 1886 the German Parliament, after two years’ 
consideration, enacted a statute which was entitled 
‘‘the law concerning the jural relations of the protected 
territories” (das Gesetz betreffend die Rechtsverhdltnisse 
der Deutschen Schutzgebtete). This statute by its terms 
referred to the statute enacted by the German Parlia- 
ment in 1879 entitled ‘‘the law concerning the German 
consular jurisdiction’’ (das Gesetz betreffend die Deutschen 
Konsulargerichtbarkeizt. The circumstances which led 
to the building of German colonial policy upon the 
principles of consular jurisdiction were as follows: 

For a long time prior to 1879, the custom prevailed 
among civilized States of obtaining by treaty, under 
application or threat of force, from States of non- 
European origin and civilization which were recognized 
as States outside of the community of nations, but in 
political and social relationship with that community, 
a right of protection (schutzrecht) for their subjects and 
for Europeans generally, and also for certain of the 
native inhabitants employed as factors, brokers, do- 
mestic servants, or farm laborers, called protégés 
(schutzgenossen); this “‘protection’’ being exercised by 
the consuls of the European powers. 


86 The Question of Aborigines 


By the law concerning consular jurisdiction it was 
provided that “‘all citizens of the German Empire 
residing or being within the consular judicial districts 
and their protected associates (schutzgenossen) are 
subject to the jurisdiction of the consular courts.”’ 

The custom of protection of native inhabitants by 
consuls had been instituted by Venice and Genoa in 
the sixteenth century, and had proved a successful 
means of carrying on a colonization the principal object 
of which was the development of commerce. Speaking 
of this custom Frances Rey, in his book La Protection 
Diplomatique et Consulaire (1899, p. 87), says: 


The [native] protégés were for Venice and Genoa a con- 
siderable element of political influence and at the same time 
a source of wealth; for, belonging to the same race as the 
rest of the population, they served as natural intermediaries 
between the natives and the Italian merchants. The privi- 
leges which they enjoyed enabled them rapidly to become 
rich, and for the most astute of them, the status of protégé 
was only a temporary one, leading to being elevated to the 
local nobility or obtaining the much-prized title of citizen 
of one of the two great maritime powers. 


This protection was altogether a personal relation- 
ship, and was in effect only so long as the person was 
in the actual service of a citizen of the protecting State. 
(Ib., edict of the Sultan of Turkey of 1863, p. 522.) 

In 1884 the custom had for a considerable time pre- 
vailed among civilized States of making treaties of 
‘““protection”’ with chiefs of aboriginal tribes, whereby 
the chief, in behalf of his tribe, placed himself and his 
tribe under the ‘‘protection’’ of the State which had 
acquired or was about to acquire sovereignty of the 
region by occupation, the protection in form being 
that of the sovereign ruler of the State in its name. 


Powers Over Tribes and Colonies 87 


Such tribes and their territory were called ‘colonial 
protectorates,”’ “native protectorates,” or “‘protected 
native States.’ These treaties recognized in form the 
“sovereignty” of the chief of this tribe or the ruler of 
the native State; but as they generally provided for a 
“resident’’ or a ‘‘resident commissioner’? within the 
native State, who exercised a real control under the 
form of advice, these ‘‘protectorates’’ were legally 
nothing more than colonies in which the native organi- 
zation was temporarily utilized as a means of adminis- 
tration until the growth of the body of colonists and 
the development of ways of communication made pos- 
sible the direct administration of the aborigines by 
the colonizing State. 

(Essai sur les Protectorats, by Franz Despagnet, pp. 
240-254.) 

At this time, also, the custom prevailed of granting to 
corporations of colonizing States letters patent of pro- 
tection (schutzbriefe), or royal charters of privileges, 
whereby these companies were granted political and 
administrative powers over specified regions where they 
had acquired a claim of title by treaty with the chiefs 
of aboriginal tribes or the sovereign of a half-civilized 
State, the privileges so granted being exercised under 
the protection of the colonizing State. 

In 1879 the consular jurisdiction had become a mat- 
ter of so much importance to Germany’s foreign trade 
that the matter, which had previously been regulated 
by statutes regarded as inadequate, was taken up and 
a carefully elaborated statute on the subject was en- 
acted, as above mentioned. 

In 1880, 12 States, including the United States, as- 
sembled in conference at Madrid and agreed upon a 
convention with Morocco, defining the rights which 
they should have in Morocco, through their trespective 


88 The Question of Aborigines 


consular jurisdictions, concerning the protection of 
those of the native inhabitants of Morocco who were 
employed by citizens of these States as factors, brokers, 
domestic servants, or farm laborers. 

The necessity of Germany’s taking action to estab- 
lish a colonial policy by statutory measures arose in 
1884 from the fact that German merchants had entered 
into treaties with aboriginal tribes on the east and west 
coast of Africa, by which the chiefs of these tribes pur- 
ported to grant tracts of land to them with powers of 
local administration; and also from the fact that other 
States, whose citizens claimed by discovery in Africa 
or under similar treaties with chiefs of aboriginal tribes 
on the coast and in the interior, made claim of sover- 
eignty over the regions in which the German merchants 
had thus established themselves. The International 
Congo Association was seeking recognition as an 
African State having sovereignty over the immense 
Congo Basin, and on April 22, 1884, received recogni- 
tion from the United States. On the next day France, 
claiming a part of this basin by discovery and by 
treaties with aboriginal chiefs, made an arrangement 
with the association by which the claims of France 
were conceded and by which it also obtained the right 
of preemption of the claims of the association if the 
latter should ever sell. This arrangement was notified 
to the powers in May, 1884. 

On June 26, 1884, during the debate in the Reich- 
stag on the treaty of trade and navigation with 
Korea, the German Government, speaking by the 
chancellor of the Empire, made the following declara- 
tion of the principles of the colonial policy of Ger- 
many which it proposed should be adopted. The 
material parts of Prince Bismarck’s statement were 
as follows: 


Powers Over Tribes and Colonies 89 


We are for the first time, through the undertakings of 
the merchants of our North Sea ports, coupled with pur- 
chases of land and followed by applications for the protec- 
tion of the Empire (Reichschutz) compelled to subject to a 
closer examination the question whether we are able to 
promise this protection of the Empire to the desired extent. 
I repeat that I am opposed to colonies—I will say rather to 
the colonial system, as most of the States have carried it on 
during the last century, the French system, as one may say 
at the present time—against colonies which have as their 
basis a piece of land, then the seeking to draw emigrants 
thither, to establish there officials and erect fortified places; 
that to-day I have not yet given up my former views in 
opposition to this kind of colonization, which may be useful 
for other lands but is not practicable for us. I believe 
that colonial projects can not be built up artificially, and 
that all the examples brought forward in the committee 
as discouragements to action simply showed that a false 
path had been entered upon; that, so to say, it had been 
attempted to build a harbor where there was no commerce, 
to build a city where there were no inhabitants and to 
which it was sought to attract them. 

Entirely different is the question, first, whether it is 
judicious, and, second, whether it is the duty of the German 
Empire, as respects those of its citizens who have entered 
upon such undertakings in reliance upon the protection 
(schutz) of the Empire, to extend to them this protection 
and a certain amount of assistance in their colonial under- 
takings, so that those structures which have grown out of 
the superabundant energy of the whole German body, in 
foreign lands, may be granted our trusteeship (pflege) and 
protection (schutz). And to this I say yea, with little con- 
fidence, however, from the standpoint of prudence—I can 
not foresee what may come from this—but with absolute 
confidence from the standpoint of the duty of the State 
(der staatlichen Pflicht). . . . 

It has been said that our colonial undertakings will be 
very costly and will bring our distressed treasury into an 


go The Question of Aborigines 


even worse condition than it is at present. Thisis, of course, 
correct if we, as has formerly been the case in such experi- 
ments, should start out by sending a multitude of higher 
and lower officials to the regions in question and then 
establish a garrison there and build barracks, harbors, and 
forts. This is not even remotely our policy; least of all, 
not mine. My policy, which is approved by His Majesty 
the Emperor, is to commit to the activity and the adven- 
turous spirit of our seafaring and trading fellow citizens 
the responsibility for the material development of the colo- 
nies (Kolonten) as well as for bringing them into existence, 
and not so much in the form of annexation of overseas 
Provinces forced upon the German Empire as in the form 
of protection by letters of privilege (freibriefen), after the 
manner of the English royal charters, thus committing to 
those interested in the colony the authority to govern 
themselves in all essential respects, there being assured to 
them the faculty of a European jurisdiction for Europeans 
and protection of them to the extent that we are able to 
give it without standing garrisons. It seems to me, further, 
that in a colony of this kind there should be, as the repre- 
sentative of the authority of the Empire (vertreter der 
Autoritat des Reiches), an official having the title of resident 
or consul. 


After stating that it was the policy of Germany not 
to encroach upon the regions to which other European 
States had tenable claims and announcing that the 
German Government had received word that Great 
Britain, the other claimant to the territory in question, 
had withdrawn its claim in favor of Germany, he con- 
tinued : 


Our policy is, therefore, not to establish Provinces but 
mercantile undertakings of such a character that when 
completely developed they shall constitute a sovereignty 
which shall remain in feudal relationship (Jehnbar) exclu- 


Powers Over Tribes and Colonies 91! 


sively to the German Empire as a permanent mercantile 
sovereignty under the protection (protektion) of the Empire 
and to protect (schiitzen) these undertakings in their free 
development, not only against attacks of their immediate 
neighbors but also against oppression or injury of the other 
European powers. 

We hope that the tree, through the efforts of the gardeners 
who plant it, will in all respects thrive. If it does not and 
the plant is a failure, it subjects the Empire to little injury, 
for the amounts which we are required to expend are of 
slight consequence. . 

This is the difference: Under the system which I have 
called the French, the administration supplied by the State 
continuously has to decide whether the undertaking is a 
proper one and bids fair to be a successful one; under this 
system we commit to the trading body, the private indi- 
vidual, the free choice as to the manner of carrying on the 
undertaking, and if we see that the tree does take root, 
grow, and thrive, and if it asks the protection (schutz) of 
the Empire, we stand by it, and I can not see how we can 
rightfully deny it such protection. 

(Proceedings of the German Reichstag for 1884, vol. 2, 
pp. 1061, 1062.) 


From this time forward, although the word colony 
(kolonie) continued to be used in the German political 
and legal language (as Prince Bismarck himself had 
used it in his statement of German policy), the techni- 
cal word applied to all the German establishments 
in Africa and the Pacific Ocean was schutzgebiete—pro- 
tected territories. 

The title of the act of 1886 was ‘‘An act respecting 
the jural relations (Rechisverhdltnisse) of the German 
protected territories (Schutzgebiete).’’ The first article 
was as follows: 


The power of protection (schutzgewalt) is exercised by the 
Kaiser in the name of the Empire (in namen Reichs). 


92 The Question of Aborigines 


This statute, as has been said, was formed by apply- 
ing the statute of 1879 relating to consular jurisdiction 
with certain modifications. In 1888, an amending 
statute was passed, and in 1900 both the statute relating 
to consular jurisdiction and that relating to protected 
territories were revised, the new statute concerning 
protected territories receiving the short title of schutz- 
gebtetegesetz—‘‘the protected territories law.”’ 

(Reichsgesetzblatt, 1879, p. 197; 1886, p. 75; 1888, 
p. 71; 1900, p. 213 and p. 809.) 

Though the statute concerning the protected terri- 
tories was, by the action of the German Parliament in 
1900, still further divorced from the statute concerning 
consular jurisdiction, it was still left so that it referred 
to the latter statute in many respects. A brief but very 
careful and accurate statement of the legal and consti- 
tutional status of the German colonies, as held by 
leading German publicists, was made by Otto Kobner 
in an introduction to the documents concerning German 
colonial administration contained in the Lots Organiques 
des Colonies, published by the Institut Colonial Inter- 
national in 1906 (vol. 3, pp. 333-353). This statement 
is as follows: 


Signification and exercise of the ‘‘ Schutzgewalt.’’—The fun- 
damental principle of German colonial constitutional law 
is expressed as follows in Article I of the law concerning 
the protected territories: ‘‘ The Emperor exercises, in the 
name of the Empire, the schutzgewalt in the German colo- 
nies.”’ 

“* Schutzgewalt,’’ in the sense of the actual German colonial 
law, signifies nothing else than the full sovereignty of the 
State; that is to say, all the rights of sovereignty which 
belong to the State as sovereign. For in spite of the name 
schutzgebtete (protected territories) the German possessions 
overseas are, if one considers their actual juridical situa- 


Powers Over Tribes and Colonies 93 


tion, not at all protectorates but colonies in the strictest 
sense of the word, in which the sovereignty of the State, 
exactly as in the mother country itself, has a character 
strictly territorial and theoretically unlimited. 

This “‘schutzgewalt’”’ belongs to the German Empire as a 
State; it is delegated, as respects its exercise, to the Emperor 
as the organ of the Empire, and the Emperor exercises it 
“in the name of the Empire.”’ 

Exercise of the legislative power for the colonies —The 
schutzgewalt, representing as it does the aggregate of the 
sovereign rights, comprises the legislative power as one of 
its most important elements. By virtue of Article I of 
the law concerning the protected territories above mentioned 
this power is theoretically delegated to the Emperor; and 
thus there is created for the legislation in the colonies a 
juridical situation departing in essential respects from the 
principles of the organization of the legislative power in 
the mother country. 

In the mother country the legislative power of the Empire 
is exercised, in pursuance of Article V of the constitution of 
the Empire, by the Bundesrat (federal council) as the con- 
stitutional representative of the confederated governments 
of the States forming the Empire, and the Reichstag (gen- 
eral assembly) as the representative of the people. Agree- 
ment of both houses by majority vote is necessary in order 
to bring into existence a law of the Empire. To the Em- 
peror belongs, in the mother country, by Article 17 of the 
constitution, the duty of promulgating and publishing the 
law thus voted, as well as the duty of seeing that the laws 
are faithfully executed. 

In the colonies, on the contrary, the Emperor, under 
Article I of the law concerning the protected territories, is 
the legislative organ; the ‘imperial ordinance’ is substi- 
tuted for ‘‘the law of the Empire.” 

Relation between the colonial jurisprudence established by 
act of the German Legislature and that established by imperial 
ordinance—Extent of the power of the Emperor in making 
ordinances relative to the various subjects of colonial law.— 


94 The Question of Aborigines 


This right of the Emperor to make ordinances is, however, 
limited as regards the matters which concern the colonies, 
upon all the points respecting which the legislature has 
expressly acted; the general principle of public law being 
applied that a regulation made by statute is supreme over 
one established by executive ordinance. 

The limitations upon the right of the Emperor to make 
ordinances vary according to the subject matter of the 
colonial law. 

In the sphere of public law, strictly so called, . 
there is, in fact, very little limitation. The general senti- 
ment seems to be that in the beginning of the development 
of new colonies such as Germany possesses it is better to 
leave to the central administration of the home Government 
the duty of taking the necessary dispositive measures. As 
respects these matters, involving as they do experimental 
arrangements, with the possibility of having to make rapid 
modifications in the measures taken to adapt them to the 
facts learned by experience, and to meet the needs of the 
development of the colony, it is impracticable and undesir- 
able each time such a change is required to put in motion the 
whole legislative machinery of the State a process which in 
all States, and particularly in Federal States, results in delay. 

On the other hand, as respects those subjects of the law 
which have reference to the legal relations of the inhabitants 
of the colonies as individuals, where the question is of the 
protection of life, liberty, property, and other personal 
interests—that is to say, as respects matters within the 
domain of the private law, the penal law, civil and criminal 
procedure, and judicial organization—other considerations 
have prevailed from the outset. The general sentiment is 
that as respects this range of subjects a special legal pro- 
tection is desirable. The most powerful legal protection 
which the modern State can give to the inhabitants of its 
colonies is that of a statute of its legislature. For this 
reason we find the regulations in the German colonies, on 
the subjects above mentioned, regulated by statute of the 
German Legislature. 


Powers Over Tribes and Colonies 95 


The above general statements are, in practice, subjected 
to some modifications. 


The juridical situation of the colonies as respects matters of 
public law. Within the domain of the public law, the right 
of the Emperor to make ordinances is limited only by a 
small number of statutory dispositions. The most import- 
ant of these is that guaranteeing liberty of conscience and 
religious toleration in the colonies in favor of members of 
religious communities recognized by the German Empire. 
In the law concerning the protected territories there are 
legislative provisions relating to naturalization which par- 
take of the nature of dispositions of public law, but the 
other branches of the administrative law of the colonies 
are regulated, with almost no exceptions, by ordinances. 

The power of making ordinances is in practice subject to 
an important restriction, in so far as its exercise involves 
financial consequences. The law concerning the receipts 
and expenses of the protected territories of March 30, 
1892, applied to the administration of the colonies the same 
principles of budgetary law as are applied in the mother 
country. Annual estimates are required to be made of the 
receipts and expenses of the colonies and to be brought 
together in a budget for the colonies. This budget is fixed 
before the commencement of the budgetary year; this 
budgetary law being enacted by the Bundesrat and the 
Reichstag the same as other laws. 

From the above it results that, though the Emperor 
alone has power to organize for all and each of the colonies 
all the branches of the administration, nevertheless, inas- 
much as nearly all these dispositions from their nature 
require appropriations of money in order to carry them into 
effect, there is continually an indirect intervention of the 
legislative organs of the mother country in the exercise of 
the power. 

The juridical situation in the domain of private law, penal 
law, procedure, and the organization of the courts. Relation 
between the colonial law and the law of the consular jurisdtc- 


96 The Question of Aborigines 


tions. The civil law, the penal law, procedure, and the 
organization of the courts in the colonies are theoretically, 
as has been said above, to be regulated by statute; a con- 
trary rule applying from that applied in the case of the 
public law of the colonies, using the term ‘public law”’ in 
the strict sense. But the special statutory regulations 
covering these parts of the law in the German colonies 
have not had the form of special legislation for the colonies, 
nor have they come about by a process of borrowing 
parts of the statutes applicable to Germany proper. These 
special statutory regulations have come into being by 
legislative acts declaring applicable in the colonies those 
arrangements, made by legislative action, which are in 
force within the territory of foreign States in which 
consular jurisdictions exist according to customary law, 
and in which a consular jurisdiction has been granted 
to Germany by treaty. By the law concerning the pro- 
tected territories in its original form it was enacted that the 
provisions of the law concerning consular jurisdiction should 
apply in the colonies as respects the whole domain of the 
private law. In recent years, however, there has been a 
more and more distinct recognition of the fact that there 
are important differences between the legislative require- 
ments of a consular jurisdiction and those of a colony. 
Consequently the revised law of 1900 concerning the 
protected territories no longer reproduces in their totality 
the provisions of the law concerning consular jurisdiction 
as covering the parts of the law above mentioned, but 
only declares applicable certain specified paragraphs of 
that law. 

The German law concerning consular jurisdiction refers 
back to the legislation of Germany itself, but nevertheless 
subjects the laws so borrowed to some modifications. 
Thus it provides that, except so far as otherwise prescribed 
in the consular jurisdiction act itself, the German imperial 
statutes and the statutes of Prussia dealing with the sub- 
jects formerly covered by the Prussian civil code, shall be 
applicable, within the German colonies, in the domain of 


Powers Over Tribes and Colonies 97 


the civil law, civil procedure, insolvency, and commercial 
arbitration. There is one important exception, alike as 
respects the consular jurisdictions and the colonies, namely, 
as respects commercial matters; with regard to which the 
above-mentioned statutes of Germany are applied only in 
so far as the customary local commercial law does not 
otherwise provide. 

In the sphere of the penal law and criminal procedure the 
provisions of the German law are alone applicable. 

These provisions of the German law are, however, not 
applicable in so far as they suppose the existence of insti- 
tutions which do not exist, or situations which do not arise 
in the exercise of the consular jurisdiction, or in the admin- 
istration of a particular colony. Matters of civil law and 
civil procedure which are for this reason not regulated by 
the German law, are determined from time to time by 
ordinance of the Emperor. 

The law concerning consular jurisdiction, however, itself 
contains a number of provisions, different from those in 
force in Germany, in the matter of both civil and criminal 
law and procedure. It also establishes a form of judiciary 
quite different from that which exists in Germany. These 
provisions, as has been said, are for the most part applicable 
in the colonies. 

It is evident that this reference of the law concerning 
colonies back to the law concerning consular jurisdiction, 
and the reference back of the latter law to the general 
statutes of Germany, make it doubtful just what legislative 
provisions are in force in the colonies. But, apart from this 
formal inconvenience, there is a further difficulty arising 
from the fact that it is becoming more and more settled, 
by actual experience, that the economic and juridical 
needs of the colonies are essentially different and more 
numerous than are those of the persons who are the subjects 
of the consular jurisdiction. In the first stage of develop- 
ment of the German colonies, when the situation demanded 
that there should be provided, as quickly as possible, a 
complete body of colonial laws covering civil and criminal 


7 


98 The Question of Aborigines 


matters, it was proper, as a practical expedient, to take asa 
basis the consular law then in existence and proved to be 
suitable by experience. But, since that time the economic, 
and juridical development of the German colonies has 
made considerable progress, and the need of a new system 
of law is more and more making itself felt. It is for this 
reason that the representatives of the science of German 
colonial law, as well as those who are engaged in actual 
colonial administration, are exerting themselves to bring 
about a change, so that the German colonial law shall be 
emancipated from the consular law, and so that in the 
sphere of both the civil and the criminal law there shall be 
created by statute a German colonial law not dependent on 
any other part of the German law, but complete in itself 
and adapted to the particular needs arising in the process 
of colonial development. . ; 

The legislation for the aborigines and other colored tnhabit- 
ants. The body of laws above mentioned, covering civil 
and criminal law, procedure and organization of courts, is 
applicable only to the white population of the German 
colonies. Section 4 of the law concerning the protected 
territories provides that the aborigines are not, as a general 
rule, subject to all these provisions, but that they shall be 
subject to them only in so far as they shall have been made 
applicable to them by ordinance of the Emperor. 

Section 4 of the law concerning the protected territories 
also provides that besides the ‘“‘colored”’ population other 
parts of the population determined by ordinance of the 
Emperor may be put upon the same footing as the aborig- 
ines. By virtue of the authority so delegated to him, the 
Emperor has decreed that the members of all the foreign 
colored tribes (die Angehérigen fremder farbiger Stimme) 
shall be placed upon the same footing as the aborigines, 
subject to exceptions made by the governor of the colony 
with the approval of the chancellor of the Empire. 

As respects the juridical situation of the aborigines 
and of all other colored people assimilated to them, 
the right of the Emperor to make ordinances by the dele- 


Powers Over Tribes and Colonies 99 


gation of the statute above mentioned is theoretically 
unlimited. 

It should be remarked, however, that the juridical mean- 
ing of the expression ‘‘colored people’”’ is not exactly the 
same as its anthropological meaning. By Section 9 of the 
law concerning the protected territories it is permitted to 
the chancellor of the Empire to grant to certain aborigines 
the citizenship of the Empire (Reichsangehérigkeit) ; and in 
this case they have under all circumstances the juridical 
situation of German citizens. But there are also certain 
other elements of the population, ‘‘colored”’ in the physical 
sense of the word, who are placed, from the juridical point 
of view, on the same footing as the white citizens of civi- 
lized States. In conformity with the development of 
modern international law, it is provided expressly by or- 
dinance of the Emperor that, as respects the German colo- 
nial law, Japanese are not to be considered as ‘‘members of 
colored tribes.’’ Moreover, in German East Africa, by 
ordinance of the governor, Syrians, inhabitants of Goa, and 
Cinghalese Christians are, as respects their juridical status, 
regarded as not amenable to the system of laws provided 
for the aborigines, but to that provided for Europeans. 
The colored citizens of any State which is civilized and 
recognized as such by international law, are, under the 
German colonial law, without any formal prescription, 
placed upon the same footing as the whites; for example, 
a negro who is a citizen of the United States of America is 
treated as such in a German colony, and not as a ‘“‘colored”’ 
person. 

The right of making ordinances delegated to the chancellor of 
the Empire. The ordinances of the chancellor of the Empire 
are another important source of German colonial legislation. 
His right to make such ordinances has two different juridical 
sources: 

(a) Delegation by the Emperor. The exercise of the right 
of making ordinances delegated to the Emperor, as above 
stated, is by him delegated in many cases to the chancellor 
of the Empire. This practice has been adopted on a great 


100 The Question of Aborigines 


scale and for all the colonies, and particularly as respects 
the regulation of the juridical situation of the aboriginal 
population. In certain important matters of law, also, the 
Emperor has made a similar delegation of power. Some- 
times the delegation has been of a whole subject in the law; 
sometimes the Emperor has himself enacted the fundamen- 
tal dispositions and left to the chancellor only the function 
of decreeing the measures necessary to execute these dis- 
positions. The latter method has been applied in the legis- 
lation regarding real property in the colonies. 

(b) Delegation by statute. The chancellor of the Empire 
has, by direct delegation by means of statute, an extensive 
right of making ordinances beyond that which is delegated 
to him by the Emperor. The law concerning the protected 
territories (sec. 15) provides that “‘it is the function of the 
chancellor of the Empire to make ordinances in execution 
of the statutes,’ and that “‘the chancellor of the Empire 
has jurisdiction to proclaim for the colonies or for specified 
parts of them police or civil regulations concerning the 
administration and to decree as penalties for nonobservance 
of them, imprisonment not exceeding three months, re- 
formative detention (haft), fine, or confiscation of specified 
articles.”’ This power the chancellor of the Empire has 
used extensively. A considerable part of the German 
colonial law now in force, especially in the case of the admin- 
istrative law, rests upon ordinances of this kind. 

Under the authority of the chancellor of the Empire the 
affairs concerning the colonies are managed by two depart- 
ments—the colonial division of the department of foreign 
affairs [since 1907 the department of the colonies, under a 
secretary for the colonies] and the department of the navy 
for the territory of Kiau-Tschau. 

The right of making ordinances delegated to colonial gov- 
ernors. Finally a part of the colonial legislation, important 
both in extent and in nature, is constituted by ordinances of 
the governors of the different colonies. These ordinances 
are principally concerned with prescribing regulations hav- 
ing to do with the juridical situation of the aborigines; but, 


Powers Over Tribes and Colonies 1o1 


nevertheless, by means of this kind of ordinances, some 
important general dispositions have been made, principally 
within the domain of the administrative law, which apply 
to the white population as well. 

The law concerning the protected territories does: not 
itself delegate to the colonial governors the power to make 
ordinances; but it recognizes that the power may be dele- 
gated to them by those having the superior functions. It 
is necessary here to make the following distinction: 

(a) In part the power of colonial governors arises from 
delegation by the Emperor. In a number of cases the 
Emperor has delegated his power of making ordinances 
regarding some matters of law by giving the chancellor 
of the Empire full powers and at the same time providing 
that the governor, by consent of the chancellor, shall have 
power to make ordinances necessary to regulate the matter. 

(b) In part this power arises from delegation by the chan- 
cellor of the Empire. In section 15 of the law concerning 
the protected territories, which contains the grant of the 
ordinance-making power to the chancellor of the Empire, 
it is expressly provided that the exercise of the power may 
be delegated by him to a colonial chartered company 
provided with a letter of protection (schutz-brief) granted 
by the Emperor, or to administrative officials in the colonies. 

By virtue of this section, the exercise of the ordi- 
nance-making power, to the extent that it belongs to the 
chancellor of the Empire, has been delegated to governors 
of different colonies, notably to those of the Caroline 
Islands, Palaos, and the Marianne Islands, to the vice 
governor at Ponape, and to the district administrators of 
Jap and Saipan. 

The governors of the colonies of German East Africa, 
German Southwest Africa, Kamerun, and New Guinea are 
authorized to delegate their powers permanently to other 
officials of the colony as respects certain districts geographi- 
cally delimited, with or without restrictions. . 

The colonial council. . . . The Kolonialrath {colonial 
council] was established by a decree of the Emperor of 


102 The Question of Aborigines 


October 10, 1890, in connection with the colonial division 
of the foreign office, as a ‘“‘council of experts in colonial 
matters.’’ The details concerning this council were estab- 
lished by decrees of the chancellor of the Empire of October 
10, 1890, and April 14, 1895. 

According to these provisions the members [the number 
of whom is not fixed] are chosen, by the chancellor, for a 
term of three years. The most important of the colonial 
companies are invited to nominate, from their members, 
for membership in the council. Likewise the central or- 
ganizations of religious missions are represented by delegates 
in the council. The remaining members are chosen by 
the chancellor at his discretion from among those skilled 
in colonial science or experienced in colonial administration. 

The colonial council is authorized (1) to give its opinion 
upon all matters which are submitted to it by the colonial 
division of the foreign office [now the colonial department], 
and (2) to make decisions in regard to propositions sub- 
mitted to it by any of its members. . . . The council 
chooses from its membership a permanent committee, whose 
opinion, on certain subjects, may be required by [the colo- 
nial department], to be given verbally or in writing, without 
being referred to a session of the full committee. This 
committee is composed of [seven] members. 

It follows from the foregoing that the colonial council is 
not a parliament having power to decree decisions as re- 
spects colonial affairs, but a consultative organ of the central 
colonial administration. It is, however, evident that the 
consultative assistance of specialists is of the greatest im- 
portance as respects questions of legislation. . . . The 
colonial council has authority only as respects the colonies 
of Africa and in the Pacific; not concerning the territory of 
Kiau-Tschau, which is under the department of the navy. 

The councils of government in the different colonies. The 
creation of consultative organs of government in the differ- 
ent colonies, whose membership is drawn from the local 
population, and particularly representing its economic 
groups, is very useful, especially as regards the framing of 


Powers Over Tribes and Colonies 103 


the ordinances requiring investigation and deliberation, 
which are made by the colonial governors. 

After such councils had come into existence in several 
colonies under different forms, a general regulation on the 
subject was made by the chancellor of the Empire by ordi- 
nance of December 24, 1903. This ordinance determined 
the constitution of ‘‘councils of government” and was ap- 
plicable to German East Africa, German Southwest Africa, 
Kamerun, Togo, German New Guinea, and Samoa. In 
each of these colonies there was constituted a council of 
government composed in part of the governor and a certain 
number of colonial officials (official members) and in part 
of a certain number of the white inhabitants of the colony 
(non-official members) or their representatives. The num- 
ber of official members can not exceed that of the non- 
official members. The official members are named by the 
governor; the non-official members are also designated by 
him, for a year at least, after he has first heard the profes- 
sional groups which consider themselves interested. The 
governor is obliged to submit to the deliberation of the coun- 
cil of government before transmission to [the colonial 
department] (a) propositions for the annual budget; (b) 
projects of ordinances to be made by the governor or to be 
proposed by him, unless they concern matters not purely 
local. If the governor thinks it his duty, on account of 
danger of delay or for any other reason, to abstain, as a 
matter of exception, from submitting to the council of 
government a project of one of these kinds, he may bring 
it directly to the attention of the central administration. 
It is permissible also for the governor to submit to the 
deliberation of the council matters other than those which 
have been mentioned. If the governor is of opinion that 
a vote should be taken on a certain subject, or a non-official 
member desires a vote, it must be taken and the result 
must be recorded in the proceedings; but the governor is 
not bound by the result of the deliberation, even in case of 
a vote. 

In the colony of Kiau Tschau, . . . by an ordinance of 


104 The Question of Aborigines 


the governor dated March 13, 1899, three representatives 
of the civil community who are annually commissioned to 
this effect are joined to the council of government composed 
of all the chiefs of the different administrations for the 
deliberation of important colonial affairs. 

The further extension of autonomy in colonial administra- 
tion. It must be admitted as certain that the economic 
future of the colonies depends upon the suitable develop- 
ment of colonial organs of autonomous administration. 
Moreover, such an extension of autonomous administra- 
tion has already been announced by the chancellor of the 
Empire as an important element of the colonial program. 

There exists, however, no simple formula universally 
anaes by which this can be accomplished. . . . In 
colonies of temperate climate, where a fixed body of white 
colonists can establish itself permanently and constantly 
augment in wealth and numbers, the circumstances are 
much more favorable for colonial autonomy than in tropical 
possessions, which naturally white men will frequent only 
in limited numbers and where they will stay only as long 
as it may be necessary. 


Paul Leroy-Beaulieu in his book, De la Colonisation 
chez les Peuples Modernes (5th ed., 1902, vol. I, pp. 
310-313), has defended the French system against the 
criticism of Prince Bismarck and has in his turn criti- 
cized the German system. He says: 


The distinction which Prince Bismarck attempted to 
make between the French colonization, which was, accord- 
ing to him, essentially and traditionally military and based 
on principles of conquest, and the German colonization, 
which was to remain perpetually pacific and based upon the 
principles of commerce, has not the importance which the 
great chancellor of the Empire, whether sincerely or not, 
attributed to it. It has not been by the free will of France 
or in pursuance of a prearranged plan that the French 
colonization has had recourse to arms. The first estab- 


Powers Over Tribes and Colonies 105 


lishments of the French . . . were simple trading sta- 
tions. . . . But when citizens of a great civilized State 
are dispersed in the midst of savage or barbarous popula- 
tions which have no fixed governments and no exact idea 
of the power of the European peoples, it is inevitable that 
sooner or later incidents will occur which make it necessary 
for the colonizing State to intervene in the internal affairs 
of the aboriginal population in order to impose upon them 
a reign of law and an orderly administration. There may 
be denials of justice to the aborigines by the European 
merchants or residents; they may commit thefts; they may 
massacre traders or colonists; they may insult the flag of 
the State—such are some of the inevitable incidents which 
will happen more and more frequently if there is any hesi- 
tation about punishing them. Moreover, it is necessary 
when all is said, in spite of all the pacific resolutions which 
may be made at the outset, to establish solidly the political 
and administrative preponderance of the colonizing State 
upon the whole population of a territory within which a 
few European colonists have begun to secure a foothold. 
But besides this there are abuses which, inasmuch as they 
affect only the aboriginal population, leave the resident 
European population insensible and cold. Slavery, for 
example, the devastating wars between tribes or chieftain- 
cies, the custom of human sacrifice—these disorders, in 
some sense a permanent feature of barbarism, necessarily 
draw down upon aboriginal peoples an intervention, con- 
tinually more and more active and complete, of the Euro- 
pean Government which is a witness of them and which, 
if it does not exert itself to repress them, makes itself an 
accomplice. To extirpate these crimes and horrors .the 
State can not fall back on the slow action of religious propa- 
ganda, and much less on the very problematical and even 
slower action of instruction and education. . . . It is, 
therefore, to be expected—doubtless not within the next 
few years but at some later time—that the Germans will 
do more or less as the French have done, and following 
out to its logical consequences the colonizing policy will 


106 The Question of Aborigines 


end by administering more or less directly and completely 
the barbarous peoples in the midst of whom they have 
established their flag. 


The war with the Hereros and the Hottentots, which 
began in 1904 and continued until 1907, led to a general 
criticism of German colonial policy in Germany, and 
attempts were made by the Social-Democratic and 
Catholic parties in the Reichstag to have the Schutzge- 
bietegesetz amended; the efforts of both being to introduce 
into the system a parliamentary regulation of the 
colonial administration, so as to decentralize it and to 
require it to exercise a guardianship over the aborigines. 
The Social- Democrats worked in the direction of having 
a special administration for the aborigines subordinate 
to the local administration made a permanent feature 
of the system; the Catholic group in the direction of 
extending missionary influence. The action of the 
Social-Democratic group is set forth in a book by 
Gustave Noske, entitled ‘‘Kolonialpolitik und Social- 
demokratie,”’ published in 1914. That of the Catholic 
group is narrated in the pamphlet on Kolonien und 
Kolonialpolitik, forming one of the series in the Staats- 
birger-Bibliothek (Citizen’s Library), published by the 
Volksverein fiir das Katholisches Deutschland (People’s 
Association of Catholic Germany). In this latter pub- 
lication it is said (p. 29): 


The inducement of the aborigines to labor can not be 
accomplished without the cooperation of the missionaries. 
It is not enough to content ourselves with Commissioners 
for the Aborigines (Eingeborenkommissarer). 

Anyone sent as commissioner should be regarded much 
more as a missionary than as a trustee (pfleger) or guardian 
(vormund) of the negro. Unless there be a just and benevo- 
lent handling of the aborigines, any colonial policy must 
come to naught. 


Powers Over Tribes and Colonies 107 


The German Government, in 1904, issued a memo- 
randum concerning the policy respecting the aborigines 
and the Herero revolution (Denkschrift uber Eingeboren- 
polittk und Hereroaufstand), setting forth the difficulties 
which it had had in the administration of Southwest 
Africa. (Appendix to the Deutsches Kolonialblatt for 
Sept. I, 1904.) 

The result of the discussion was that, in 1907, the 
administration of all the colonies, except Kiau-Tschau, 
was transferred to the colonial division of the foreign 
office and placed in charge of a minister of the colonies, 
to whose department was attached the colonial council. 
The attempts to remodel the Schutzgebtetegesetz, how- 
ever, failed. 

In the book by Alfred Zimmermann entitled “‘A 
History of German Colonial Policy’’ (Geschichte der 
Deutschen Kolonialpolitik), published in 1914, a careful 
and detailed statement is made of all the facts leading 
up to the enactment of the original statute of 1886, 
and of the subsequent events affecting the colonial 
policy of Germany. 


CONCLUSIONS 


From the foregoing survey it is evident that all civi- 
lized States which administer overseas colonies and 
dependencies recognize that the relationship which each 
of them bears to these communities is of an essentially 
personal character, though it extends to property as 
well as person—the State as a personality exercising 
power over these communities as personalities under 
its jurisdiction; that the power is exercised by special 
legislation as may be “‘needful’’; that the power 1s 
“adequate’’ to the needs of these personalities; and that 
it is limited by their needs and by the fundamental 


108 The Question of Aborigines 


principles recognized by all civilized States and em- 
bodied in their constitutions. 

That it is a relationship which has its source in the 
sovereignty of the State, and not in the domestic con- 
stitution of the State, is also recognized by the leading 
publicists, though it is also recognized that the domestic 
constitution may properly specify how the legislature, 
executive, and judiciary of the State may act in the 
exercise of the power and may impose proper restric- 
tions on their action. 

It is also recognized generally that the legislature 
is properly the supreme superintending organ of the 
State in exercising the power, though the executive is 
also almost invariably recognized as the proper ordi- 
nary organ for this purpose, either by specification 
contained in the constitution, or by implication from 
the grant of the executive power, or by delegation by 
the legislative of sublegislative power to the executive. 

As a term to describe this relationship, the word 
‘‘trusteeship’’ seems to be coming into use in the Anglo- 
Saxon world. (Cf. The Administration of Dependen- 
cies, by Alpheus H. Snow, pp. 534-536, 582-591.) 

When ‘“‘trusteeship”’ is used in this sense, it has not 
the meaning of trusteeship in the private law, but is 
used in a broad sense conforming to the literal meaning 
of the word. In the private law a trusteeship is the 
relation between persons arising out of the deposit of 
money or property by one with the other, with the 
object of having it produce an income to be paid over 
by the trustee in a specified manner to specified per- 
sons, or having it used in a specified manner for the 
benefit of specified persons or for specified objects. It 
is thus, in the sense of the private law, essentially a 
relationship concerning property rather than a relation- 
ship between persons. A trust, in its literal sense, is a 


Powers Over Tribes and Colonies 109 


relationship of an essentially personal character. In 
its modern derivative sense, especially as used in the 
politico-legal language of the present day, the word 
‘‘trust”’ covers all the relations of a fiduciary character 
in which a person assumes a relationship of responsi- 
bility for or to another, as both the Oxford and Century 
dictionaries testify. In this broad sense, trusteeship is 
a generic term including all the fiduciary relationships 
relating to person or property, and thus includes the 
relationship of parent and child, husband and wife, 
guardian and ward, patron and apprentice, master and 
servant, as well as trustee and cestui que trust, agent 
and principal, bailee and bailor, depositary and deposi- 
tor, partner and copartner, etc. 

Using trusteeship as its literal sense and also to some 
extent in this generic sense, it seems to be the most 
appropriate word to describe the relationship between 
a civilized State and all its colonies and dependent 
communities of whatever character. 

The trusteeship of a civilized State for its colonies 
and dependencies is, however, a trusteeship essentially 
relating to person rather than property, and, therefore, 
the closest analogies which the private law furnishes 
for determining the problems of this trusteeship are 
those derived from the rules of the private law relating 
to patron and apprentice, and guardian and ward. The 
analogy of the relationship of parent and child, though 
often applied, seems to be figurative and inexact, 
though there are implications in the adjective “‘pater- 
nal’’ that are not without value by way of analogy. 

It would seem, therefore, that the general nature of 
the jural relationship which a civilized State exercises 
over all its colonies and all its dependent communities, 
whether these communities be in colonies, or within its 
domestic territory or located externally to both, is best 


110 The Question of Aborigines 


described by the word trusteeship, using this word in 
its literal sense as implying a fiduciary relationship 
essentially personal, though extending to property as 
well as person; that the fiduciary power is plenary, in 
the sense that it is adequate to the needs of the situa- 
tion of the particular personality to which it is applied 
though limited to these needs; that as a power over 
political personalities it is an incident of the sovereignty 
of each civilized State, and is governed by the law of 
nations, though not by the body of rules which apply 
between civilized States to which the name international 
law is properly applied; and that the closest analogies 
to this relationship which occur in the private law are 
those of patron and apprentice and guardian and ward. 

As respects self-governing colonies principally in- 
habited by persons of European origin, the closest anal- 
ogy to be drawn from the private law would seem to be 
that of the relationship of patron and apprentice; as 
respects all other colonies and dependencies the closest 
analogy to be drawn from the private law would seem 
to be that of guardian and ward; the analogy becoming 
very close in the case of aboriginal tribes whose mem- 
bers, by reason of their lack of mental and moral 
development, occupy a relationship to civilized States 
akin to that which young children of civilized parents 
bear to the State. 

The word ‘‘protectorship” implies a fiduciary rela- 
tionship of a personal character, but is in its literal 
sense limited to defence against injury, and does not 
imply personal influence and control. In its literal 
sense, therefore, it is not applicable to describe the 
jural relationship of a civilized State to all its colonies 
and dependencies, since that relationship implies not 
only defence but active and continuous education and 
guidance. It is to be noted, however, that the French 


Powers Over Tribes and Colonies 111 


and English word ‘‘protection,’’ and the German word 
schutz, were legal terms in the feudal law, from which 
law they apparently came into the public law of Europe. 
In the feudal law protection or schutz implied a personal 
relationship between a sovereign or a lord having the 
dominium or domain over territory and the imperium or 
empire over its inhabitants, whereby a complicated 
body of reciprocal rights and duties arose; the sovereign 
or lord being regarded as the protector of the rights of 
person and property of his subjects or vassals, and they 
rendering service, or compensation in lieu of service, in 
return. In this sense protection or schuitz had very 
nearly the meaning of trusteeship, using that word in 
its broadest sense. That in the founding of the German 
colonial system this feudal sense of schuiz was in the 
minds of those originally concerned seems probable from 
the fact that Prince Bismarck, in his original declara- 
tion of colonial policy, asserted that ‘‘the mercantile 
sovereignty” with which it was proposed to endow the 
colonies was to be ‘‘in feudal relationship’”’ (lehnbar) to 
the German Empire. 

(As to the meaning of protection, schutz and trust in 
the feudal law, see Staats-und-Gesellschafts Lexikon, by 
Herman Wagener, vol. 12, pp. 121-148; article on 
‘“‘Lehnrecht.”’ Especially see p. 122, concerning the 
antrustiones, of the time of Charlemagne, who were 
persons in the close personal confidence of the King 
and members of his privy council.) 

The most recent writer who has considered the rela- 
tions of Germany to its protected territories (H. Gell- 
mann, in his article on Die Vélkerrechtliche Okkupation, 
written just before the war and published in the Zezt- 
schrift fiir das Privat-und-Offentliche Recht, of Vienna, 
in 1915 (Nos. 3 and 4, vol. 41), after an extensive exami- 
nation of the jural principles of the relationship between 


112 The Question of Aborigines 


civilized States and aboriginal tribes, concludes (pp. 
707-708) that Germany, as protector (Schutzherr) of 
the protected territories (Schutzgebiete), stands in the 
relationship to them of “international guardianship”’ 
(vélkerrechtliche Vormundschaft), and that a civilized 
State, in the exercise of this international guardianship, 
is ‘‘the organ of the power of the community of the law 
of nations by an irrevocable mandate.’ (Das Reich ist 
Organ der Volkerrechtsgemeinschaft Kraft deren unent- 
ziehbaren Mandats.) He holds that a civilized State, 
in exercising power over its colonies and dependencies, 
is “‘neither a constitutional nor an international sov- 
ereign,”’ but that its sovereignty is of a special character. 

In a book entitled Die Deutschen Schutzgebtete, Er- 
werb, Verwaltung und Gerichtsbarkeit (The German 
Protected Territories, Their Institution, Administra- 
tion, and Jurisdiction), by Hellmuth Kuhn, published 
in 1913, a survey is made of the whole literature on 
the subject of the jural relationship between Germany 
and its protected territories. He concludes that the 
Schutzgebtete are ‘‘colonies’’ in the generic sense, though 
the existing Schutzgebiete of Germany are rather to be 
classified as ‘“‘dependencies” (p. 73). Kuhn regards 
these dependencies as subject to the plenary sovereignty 
of Germany. He cites (p. 63) two writers, Joel and 
Pann, as holding that the German protected territories 
have a relationship to Germany which is both under 
the law of nations and the constitutional law of Ger- 
many. He refers also to the view of Radlauer (p. 65), 
that “motherland and colonies have a separate political 
existence, as States, based on differing conceptions,”’ 
and to his argument, supporting this view, that they 
must be regarded as States because they are ‘‘lands 
subject to external regulation and not territories form- 
ing part of a legislative unity,’ and because the inhabi- 


Powers Over Tribes and Colonies 113 


tants of these lands require for their proper government 
‘‘the application of special political principles as respects 
all their political activities.”’ Kuhn quotes with ap- 
proval the following words of Radlauer: 


The power over colonies is a constitutional paternal 
power over a daughterland. . . . Just asa father, under 
the ancient German law, exercised the paternal power of 
guardianship (Muntwalt) over the affairs of his child, not 
in the name of the child, but for the child’s use and benefit, 
though upon his (the parent’s) responsibility, so the Empire 
in its protected territories exercises the sovereignty in its 
own name and upon its own responsibility. 


The conclusion which would seem to follow from this 
whole survey is that the power which a civilized State 
exercises over all its colonies and dependencies is, ac- 
cording to the law of nations, a power of trusteeship, 
and that the power of guardianship over its dependent 
aboriginal tribes is one of the manifestations of this 
general power. 

8 


CHAPTER VI 


RIGHTS OF ABORIGINES AS RESPECTS THE LAND 
INHABITED BY THEM 


HE question of the relation of the Indian tribes 

At to the soil first came before the United States 

Supreme Court in 1810, in the case of Fletcher 

v. Peck, 6 Cranch, 121. John Quincy Adams and Joseph 

Story appeared for the defendant in error, in opposition 

to the claim under an Indian grant. In their argument 
they said: 


What is the Indian title? It is a mere occupancy for 
the purpose of hunting. It is not like our tenures; they 
have no idea of a title to the soil itself. It is overrun by 
them, rather than inhabited. It is not a true and legal 
possession. Vattel, b. 1, §81 and §209; b. 2, §97. Mon- 
tesquieu, b. 18, 2. 12. Smith’s Wealth of Nations, b. 5, c. I. 
It is a right not to be transferred but extinguished. 


The majority of the court, speaking by Chief Justice 
Marshall, found it sufficient for the decision of the case 
to make the cautious statement that ‘‘the nature of 
the Indian title, which is certainly to be respected by 
all courts until it is legitimately extinguished, is not 
such as to be absolutely repugnant to a seizin in fee 
on the part of the State.’’ The minority, speaking by 
Johnson, J., held that the Indian tribes within the 
States had the fee subject to a right of preemption by 
the States in which the land was located, and that this 


114 


Rights of Aborigines in Land 115 


right of preemption could be conveyed by the State 
to the United States. 

In the case of Johnson v. McIntosh, 8 Wheaton, 543, 
to which reference has already been made, an Indian 
title purporting to have been granted by the Indian 
tribes inhabiting the country to a body of private 
individuals when the United States were British colo- 
nies was held invalid. 

The Supreme Court, speaking by Chief Justice 
Marshall, rendered a unanimous decision, covering in 
their opinion the historical aspects of every phase of the 
Indian land question from the standpoint of English 
and American law and the law of nations. The follow- 


ing extracts will illustrate the point decided by the 
court: 


The inquiry . . . is, in great measure, confined to the 
power of Indians to give, and of private individuals to 
receive, a title which can be sustained in the courts of this 
COUNUTLYV oi 

On the discovery of this immense continent the great 
nations of Europe were eager to appropriate to themselves 
so much of it as they could respectively acquire. Its vast 
extent offered an ample field to the ambition and enterprise 
of all, and the character and religion of its inhabitants 
afforded an apology for considering them as a people over 
whom the superior genius of Europe might claim an ascend- 
ency. The potentates of the Old World found no difficulty 
in convincing themselves that they made ample compensa- 
tion to the inhabitants of the new by bestowing on them 
civilization and Christianity in exchange for unlimited 
independence. But as they were all in pursuit of nearly 
the same object, it was necessary, in order to avoid conflict- 
ing settlements and consequent war with each other, to 
establish a principle which all should acknowledge as the 
law by which the right of acquisition, which they all 
asserted, should be regulated as between themselves. The 


116 The Question of Aborigines 


principle was that the discovery gave title to the Govern- 
ment by whose subjects or by whose authority it was 
made, against all other European Governments, which title 
might be consummated by possession. 

The exclusion of all other Europeans necessarily gave to 
the nation making the discovery the sole right of acquiring 
the soil from the natives and establishing settlements upon 
it. It was aright with which no Europeans could interfere. 
It was a right which all asserted for themselves, and to the 
assertion of which by others all assented. 

The relations which were to exist between the discoverer 
and the natives were to be regulated by themselves. The 
rights thus acquired being exclusive, no other power could 
interfere between them. 

In the establishment of these relations the rights of the 
original inhabitants were in no instance entirely disregarded, 
but were necessarily, to a considerable extent, impaired, 
They were admitted to be rightful occupants of the soil. 
with a legal as well as a just claim to retain possession of it 
and to use it according to their own discretion; but their 
rights to complete sovereignty, as independent nations, 
were necessarily diminished, and their power to dispose of 
the soil at their own will, to whomsoever they pleased, was 
denied by the original fundamental principle that discovery 
gave exclusive title to those who made it. 

While the different nations of Europe respected the rights 
of the natives, as occupants, they asserted the ultimate 
dominion to be in themselves; and claimed and exercised, 
as a consequence of this ultimate dominion, a power to 
grant the soil, while yet in possession of the natives. 
These grants have been understood by all to convey a 
title to the grantees, subject only to the Indian right of 
occupancy, 


After a long and careful examination of the practice 
of the nations of continental Europe and of Great 
Britain, and particularly of the practice of Great Britain 
in dealing with the lands occupied by the Indians in 


Rights of Aborigines in Land 117 


the American colonies, the opinion summarizes these 
practices as follows: 


Thus all the nations of Europe who have acquired terri- 
tory on this continent have asserted in themselves, and have 
recognized in others, the exclusive right of the discoverer to 
appropriate the lands occupied by the Indians. 


The practice of the United States is then examined 
at length and the court thus sums up the results of its 
examination: 


The United States, then, have unequivocally acceded to 
that great and broad rule by which its civilized inhabitants 
now hold this country. They hold and assert in themselves 
the title by which it was acquired. They maintain, as all 
others have maintained, that discovery gave an exclusive 
right to extinguish the Indian title of occupancy either by 
purchase or by conquest; and gave also a right to such a 
degree of sovereignty as the circumstances of the people 
would allow them to exercise. 


In the year 1888 the question of the Indian title to 
lands in Canada, as established by the peace treaty of 
1763 between Great Britain and France and by the 
British royal proclamation of 1763 dividing the western 
territory into Provinces and providing for its govern- 
ment, came before the judicial committee of the British 
Privy Council on appeal from the Supreme Court of 
Canada in the case of St. Catharine’s Milling Company 
vy. The Queen, L. R., 14 App. Cas., 46. The lands in 
question having been occupied by certain Indian tribes 
since before 1763, and these tribes having surrendered 
by treaty their interest in them to the Dominion of 
Canada, in 1873, subsequently to the enactment of the 
British North America act of 1867, the question was 
whether the treaty operated as the extinguishment of a 


118 The Question of Aborigines 


usufructuary right in these lands as Crown lands or 
was the conveyance of an actual title to the lands as 
the property of these Indian tribes; the Province of 
Ontario and its grantees, by the British North America 
act, being entitled to them on the one view of the law, 
and the Dominion of Canada and its grantees on the 
other. The judicial committee, in adopting the former 
view, said: 


The capture of Quebec in 1759 and the capitulation of 
Montreal in 1760 were followed in 1763 by the cession to 
Great Britain of Canada and all its dependencies, with the 
sovereignty, property, and possession, and all other rights 
which had at any previous time been held or acquired by 
the Crown of France. A royal proclamation was issued on 
the 7th of October, 1763, shortly after the date of the Treaty 
of Paris, by which the Majesty King George erected four 
distinct and separate governments, styled, respectively, 
Quebec, East Florida, West Florida, and Grenada, specific 
boundaries being assigned to each of them. Upon the nar- 
rative that it was just and reasonable that the several 
nations and tribes of Indians who lived under British pro- 
tection should not be molested or disturbed in the ‘‘posses- 
sion of such parts of our dominions and territories as, not 
having been ceded to or purchased by us, are reserved to 
them or any of them as their hunting grounds,”’ it is declared 
that no governor or commander in chief in any of the new 
colonies of Quebec, East Florida, or West Florida do pre- 
sume on any pretense to grant warrants of survey or pass 
any patents for lands beyond the bounds of their respective 
governments, or “until our further pleasure be known’”’ 
upon any lands whatever, which, not having been ceded or 
purchased as aforesaid, are reserved to said Indians, or 
any of them. It was further declared ‘‘to be our royal will 
for the present as aforesaid, to reserve under our sovereignty, 
protection, and dominion for the use of the said Indians 
all the land and territories not included within the limits 


Rights of Aborigines in Land — 119 


of our said three new governments, or within the limits of 
the territory granted to the Hudson’s Bay Company.”’ 
The proclamation also enacts that no private person shall 
make any purchase from the Indians of lands reserved to 
them within those colonies where settlement was permitted, 
_ and that all purchases must be on behalf of the Crown, 
in a public assembly of the Indians, by the governor or 
commander in chief of the colony in which the lands 
ita ee 

Whilst there have been changes in the administrative 
authority, there has been no change since 1763 in the 
character of the interest which its Indian inhabitants had 
in the lands surrendered by the treaty. Their possession, 
such as it was, can only be ascribed to the general provisions 
made by the royal proclamation in favor of all Indian tribes 
then living under the sovereignty and protection of the 
British Crown. It was suggested in the course of the argu- 
ment for the Dominion that, inasmuch as the proclamation 
recites that the territories thereby reserved for Indians had 
never ‘“‘been ceded to or purchased by’’ the Crown, the 
entire property of the land remained with them. That 
inference is, however, at variance with the terms of the 
instrument, which show that the tenure of the Indians was 
a personal and usufructuary right, dependent upon the 
good will of the sovereign. The lands reserved are expressly 
stated to be ‘‘parts of our dominions and territories,’’ 
and it is declared to be the will and pleasure of the sovereign 
that ‘‘for the present”’ they shall be reserved for the use 
of the Indians, as their hunting grounds, under his protec- 
tion and dominion. There was a great deal of learned dis- 
cussion at the bar with respect to the precise quality of the 
Indian right, but their lordships do not consider it necessary 
to express any opinion upon the point. It appears to them 
to be sufficient for the purposes of the case that there has 
been all along vested in the Crown a substantial and para- 
mount estate underlying the Indian title, which became a 
plenum dominium whenever that title was surrendered or 
otherwise extinguished. 


120 The Question of Aborigines 


In the report of the Committee on Indian Affairs of 
the United States House of Representatives, submitted 
in 1830, and favoring legislation relating to the removal 
of the Indians to the Indian Territory, the legal aspects 
of the provision of such reserves for aboriginal tribes 
is considered. In that report (2Ist Cong., Ist sess., 
H. R. Rep. No. 227, Feb. 24, 1830), it was said: 


The rigor of the rule of their exclusion from these rights 
[the rights of soil and sovereignty] has been mitigated, in 
practice, in conformity with the doctrines of those writers 
upon natural law, who, while they admit the superior 
rights of agriculturists over the claims of savage tribes in 
the appropriation of wild lands, yet, upon the principle 
that the earth was intended to be a provision for all man- 
kind, assign to them such portion as, when subdued by the 
arts of the husbandman, may be sufficient for their sub- 
sistence. 

To the operation of this rule of natural law may be traced 
all those small reservations to the Indian tribes within the 
limits of most of the old States. The General Court of 
Massachusetts fell short of coming up to the principle of 
natural law, but went beyond the general maxims of the 
period, when, in 1633, it declared ‘‘that the Indians had 
the best right to such lands as they had actually subdued 
and improved.’ That Government, at the same time, 
asserted its right to all the rest of the lands within its 
charter, and actually parceled them out by grant among 
the white inhabitants, leaving to them the discretionary 
duty of conciliating the Indians by purchasing their title. 
The general assembly of Virginia asserted the unrestricted 
right of a conqueror, and, at the same time conceded what 
the principles of natural law were supposed to require, 
when, in 1658, it enacted ‘‘that for the future no lands 
should be patented until 50 acres had been first set apart 
to each warrior or head of a family belonging to any tribe 
of Indians in the neighborhood.” 


Rights of Aboriginesin Land 121 


The recognition of this principle by the Federal Govern- 
ment may be seen, at this day, in those small reservations 
which are made to individual Indians, or to the tribe itself, 
upon the relinquishment of the body of their lands. These 
reservations are made in deference to the principles of 
humanity, and because it has been found expedient to the 
interests of the Government making them. No respectable 
jurist has ever gravely contended that the right of the 
Indians to hold their reserved lands could be supported in 
the courts of the country upon any other ground than the 
grant or permission of the sovereignty or State in which 
such lands lie. The Province of Massachusetts Bay, besides 
the subdued land already mentioned, during the early 
period of its history, granted other lands to various friendly 
tribes of Indians. Gookin, the great protector and friend 
of the Indians, about the time these grants were made was 
asked, why he thought it necessary to procure a grant from 
the general court for such lands as the Indians needed, 
seeing that ‘“‘they were the original lords of the soil.’’ He 
replied that “‘the English claim right to the land by patent 
from their King.’’ No title to lands that has ever been 
examined in the courts of the States, or of the United 
States, it is believed, has been admitted to depend upon 
any Indian deed of relinquishment, except in those cases 
where, for some meritorious service, grants have been made 
to individual Indians to hold in fee simple. 

Some of the colonies found it necessary, for the preserva- 
tion of peace upon their frontiers, to establish a general 
Indian boundary, beyond which the white inhabitants 
were forbidden to settle, until authorized by law. These 
lines were generally in advance of the settlements. They 
were also commonly established in conformity with the 
stipulations made with the Indians in conferences or treaties. 
That the Indian boundaries were regarded as temporary, 
and implied no abandonment of the principle upon which 
the country was settled, is clear from many circumstances 
attending them. In some cases the laws by which these 
lines were established did not forbid the appropriation of 


122 The Question of Aborigines 


the lands embraced in them by patent. Patents, in two or 
three of the colonies or States, did actually issue under 
such circumstances; yet, these acts, implying, as they do, 
a most important act of ownership and sovereignty, have 
been solemnly adjudged valid by the judicial tribunals of 
the country most distinguished for their learning. But the 
most decisive evidence of the light in which these reserva- 
tions have always been viewed, in regard to the question of 
title, is to be found in the fact, that the Crown or the pro- 
prietors of Provinces, before the Revolution, and the States, 
after that event, succeeding as they did to the sovereignty 
over all the lands within the limits of their respective char- 
ters, have asserted the exclusive right, in themselves, to 
extinguish the title to lands reserved to the Indians, until 
the Constitution was adopted. Since that time the Federal 
Government has acted upon the same principle in regard 
to the lands belonging to the Government. Ifthe principles 
upon which this right is asserted, and the effect it has 
had in practice, be examined, it will be found to be a com- 
plete recognition of the original rule which the nations of 
Europe acted upon in the first partition and settlement of 
the country. Some of the States have incorporated this 
right in their constitutions, as a principle of primary im- 
portance. Laws have been passed in all the rest, in which 
there are Indian reservations, granted by the States, de- 
claring the same exclusive right. 

The committee do not understand that either the States 
or the Federal Government ever acted upon the principle 
that it was necessary to obtain the consent of the Indians 
before the right to exclude all competitors from the market 
of their lands could be asserted. It is asserted, upon the 
ground of ownership and political sovereignty, and can be 
sustained upon no other principles than those which our 
ancestors supposed to be well founded, when they denied 
to the Indians any right to more land than they required 
for their subsistence by agriculture. The Indians are paid 
for their unimproved lands as much as the privilege of 
hunting and taking game upon them is supposed to be 


Rights of Aboriginesin Land 123 


worth, and the Government sells them for what they are 
worth to the cultivator. The difference between those 
values is the profit made by asserting the original rights of 
discovery and conquest. The rigor of the original rule has 
been mitigated in the exercise of this right of preemption 
in regard to such lands as have been improved by the In- 
dians, for the same reason that their right to such as they 
had subdued was respected by the colonists in the early 
period of their history. Improved lands or small reserva- 
tions in the States are in general purchased at their full 
value to the cultivator. To pay an Indian tribe what their 
ancient hunting grounds are worth to them after the game 
is fled or destroyed as a mode of appropriating wild lands 
claimed by Indians has been found more convenient, and 
certainly it is more agreeable to the forms of justice, as well 
as more merciful, than to assert the possession of them by 
the sword. Thus the practice of buying Indian titles is 
but the substitute which humanity and expediency have 
imposed in place of the sword in arriving at the actual 
enjoyment of property claimed by the right of discovery 
and sanctioned by the natural superiority allowed to the 
claims of civilized communities over those of savage tribes. 
Up to the present time so invariable has been the operation 
of certain causes, first, in diminishing the value of forest 
lands to the Indians and, secondly, in disposing them to 
sell readily, that the plan of buying their right of occupancy 
has never threatened to retard in any perceptible degree 
the prosperity of any of the States. The extensive tracts 
of country at first withheld from the agriculturists by reser- 
vations in several of the old States have been gradually 
reduced by various cessions, made as they were required by 
the interests of the respective States, until the Indians in 
most of them already find themselves restricted to those 
small bounds which the law of nature as interpreted by our 
ancestors prescribed as their right. With what steadiness 
this policy has been adhered to by the States generally in 
regard to Indian reservations in which they claimed the 
absolute property may be seen by tracing its operation in 


124 The Question of Aborigines 


any one of them, for in all the interest was the same, and 
the result could not vary materially. The governor of the 
only one of the old States, except Georgia, inhabited by 
any considerable number of Indians is by law a standing 
commissioner to treat with the Indians for any or all their 
lands. 

In justice to the character of the early adventurers to this 
country, as well as to our own, it ought to be mentioned 
that, from the period of the origin of these States, the in- 
terests of the white population and those of the Indians 
were understood by the whites not to be inconsistent with 
each other in regard to the appropriation of forest lands. 


In the report of Rev. Jedediah Morse, made to the 
Secretary of War in 1821, above quoted, the legality 
of the removal of the Indians to reservations is asserted 
and the plan recommended. In this report it was said: 


The relations which the Indians sustain to the Govern- 
ment of the United States is peculiar in its nature. Their 
independence, their rights, their title to the soil which they 
occupy are all imperfect in their kind. Each tribe possesses 
many of the attributes of independence and sovereignty. 
They have their own forms of government, appoint their 
own rules, in their own way, make their own laws, have 
their own customs and religion, and without control declare 
war and make peace and regulate all other of their civil, 
religious, and social affairs. The disposal of their lands is 
always done by formal treaties between the Government 
of the United States and the tribe, or tribes, of whom the 
lands are purchased. They have no voice, no representation 
in our Government; none of the rights of freemen, and par- 
ticipate with us in none of the privileges and blessings of 
civilized society. In all these respects Indians are strictly 
independent of the Government and people of the United 
States. Yet the jurisdiction of the whole country which 
they inhabit, according to the established law of nations, 
appertains to the Government of the United States; and 


Rights of Aborigines in Land 125 


the right of disposing of the soil attaches to the power that 
holds the jurisdiction. Indians, therefore, have no other 
property in the soil of their respective territories than that 
of mere occupancy. This is a common, undivided property 
in each tribe. When a tribe, by treaty, sell their territory, 
they sell only what they possess, which is the right to occupy 
their territory, from which they agree to remove. 

The complete title to their lands rests in the Government 
of the United States. The Indians, of course, can not sell 
to one another more than what they possess; that is, the 
occupancy of their lands. Nor can they sell anything 
more than occupancy to individual white people. Indian 
conveyances give no title to the soil. This title can come 
only from the power that holds the jurisdiction. 

Besides, the territory necessary to give support to any 
given number of people in the hunter state, as it is desig- 
nated, is vastly greater than is required to yield subsistence 
to the same number of people in the agricultural state. 
Here, again, the Indian title to their respective territories 
is imperfect in another respect. When the hunter state, 
from whatever cause, is relinquished and the agricultural 
state adopted, the Indians are entitled to no more of their 
territories, so changed, than is requisite to give them, from 
cultivating the earth, a support equal to that which they 
derived from their whole territory in the hunter state. 
The advantages of the agricultural over the hunter state 
are presumed to be a just equivalent to the Indians for the 
lands they are constrained to resign to the civilized state. 
Such appear to be the established laws and doctrines of 
our General and State Governments, in respect to our 
relation to the Indian tribes in our country, to their inde- 
pendence, their rights, and title to their lands. 


In recent years the appreciation of the value of abo- 
rigines as laborers in developing a new region has led 
to the practice of protecting and educating them on 
reservations containing the native settlements, in the 


126 ‘The Question of Aborigines 


midst of or near to the settlements of the civilized 
colonists, so that their labor may be available. Such a 
system has been adopted in South Africa after a long 
and careful study of the problem of the aborigines of 
the region, apparently with benefit to all concerned. 
(See the Union of South Africa, with chapters on Rho- 
desia and the Native Territories of the High Commis- 
sion, by W. Basil Worsfold, London, 1912, pp. 35 to 46.) 

(See also British Parl. Papers, 1905 (Cd. 2399), vol. 
55, p. 67, Report of the South African Native Affairs 
Commission. ) 

(British Parl. Papers, 1908 (Cd. 4119), vol. 70, p. 
273, Report on Native Education in South Africa; 
ib. (Cd. 3889), vol. 72, p. 5, Report of South African 
Native Affairs Commission. ) 

(British Parl. Papers, 1914 (Cd. 7508), vol. 59, Union 
of South Africa: Correspondence relating to the Natives 
Land Act, 1913.) 

The modern practice of nations in regard to making 
reserves of lands for the aboriginal tribes is much more 
favorable to the aborigines than was the practice of a 
century ago. Thus in the British protectorate of 
Uganda, a general land settlement was made after the 
pacification of the country and the submission of the 
King Mwanga to the sovereignty of Great Britain, 
which is described by Sir H. H. Johnston, the commis- 
sioner having charge of the settlement (British Parl. 
Papers, 1901, vol. 48 (Cd. 671), Africa No. 7, 1901, 
p. 14) : 

The general arrangement regarding the land settlement 
effected during the past 18 months is as follows: Where the 
country is inhabited by settled natives they are to retain— 
as individuals or tribes—in their exclusive possession the 
land they actually occupy or cultivate. All forests and all 
waste land have become the property of His Majesty’s 


Rights of Aborigines in Land 127 


Government. In return for the surrender of these rights 
to the waste and uncultivated lands, in almost all cases, 
direct payments have been made to the chiefs or peoples. 
The exceptions to this rule have been few, and have been 
occasioned by unprovoked attacks on the part of the natives. 

In imposing terms of peace these once hostile natives 
have been guaranteed the possession of the lands they oc- 
cupied, but have been told that the right to the waste 
and uncultivated lands has been vested in His Majesty’s 
Government by right of conquest. 

In cases where the natives surrendered their rights vol- 
untarily and without compensation, a promise has usually 
been given that in the event of the tribe increasing and 
multiplying to a considerable extent, the local government 
would endeavor to allot it further tracts from out of the 
waste and uncultivated lands to meet the increase of native 
population. In the Province of Uganda and the district of 
Toro, where the natives had attained a certain degree of 
civilization and where individual ownership of land is a 
matter of great importance, an attempt has been made to 
bring about a very elaborate allotment. Estates have been 
marked off, both large and small, by the local chiefs, in 
concurrence with the European administration, and it is 
hoped that the Uganda survey department may put a 
seal on this settlement by a survey which would place these 
boundaries beyond dispute. 

I think I may say that nothing has tended to bring about 
friendlier relations between the European administration 
and the native population than this adjustment of the land 
question. What the natives dreaded in the advent of 
European control was that they would lose their lands and 
become the tenants of European landlords. In the case of 
tribes like the Masai, who do not cultivate the soil or do 
not even settle on it very definitely, grazing grounds to a 
fair extent have been allotted on much the same lines as 
though the land was under cultivation. There are, of course, 
parts of the protectorate, as I have already pointed out, 
absolutely without a settled population, which are only 


128 The Question of Aborigines 


occupied temporarily by hunters in pursuit of game or in 
search of wild-bee honey. 

Here the British Government has at its disposal valuable 
tracts which it can open for direct European colonization 
without in any way hurting the feeling of an indigenous 
race. Elsewhere in the protectorate, however, so long as 
the natives live loyally under our protection and pay the 
taxes which they have agreed to pay, great tenderness 
should be shown toward their feelings in regard to the land, 
for it is they who will, or should in the main, support the 
charges in the administration. Of course, there remain in 
these countries enormous tracts of fertile soil which the 
Government may deal with freely and may hand over to 
European settlers and capitalists without any inquiry to 
native rights or aspirations at all, but we should be careful 
to mentally reserve at least half of this area of disposable 
ground for the future hoped-for increase in the native 
population. 


The rule of the law of nations according to which 
aborigines have only a personal right of occupying the 
land inhabited by the tribes to which they belong, sub- 
ject to the right of the State exercising the sovereignty 
to restrict them to lands which it sets apart and reserves 
for them, suitable for them as agriculturists, necessarily 
gives the aborigines an inferior station with respect to 
the colonists and exposes them to being cheated out of 
their lands by malevolent Europeans. To avoid this 
situation and this possibility, a practice has recently 
been put in operation in some of the British colonies 
by which the British Government grants all land on 
lease, reserving a rental, so that all transfers of land 
are subject to its sanction as general landlord. The 
aborigines are thus protected and the formation of 
monopolistic holdings is prevented. The land rental 
being paid by the colonists and the aborigines alike, 


Rights of Aboriginesin Land 129 


there results a just division of the expenses of govern- 
ment between the two elements of the population. 
This practice was instituted in 1910 in Northern Ni- 
geria by order of the British Government as the result 
of the inquiry and investigation of a governmental 
commission. The provisions of the land-tenure act are 
as follows: 


Whereas it is expedient that the existing customary rights 
of the natives of Northern Nigeria to use and enjoy the 
land of the protectorate and the natural fruits thereof in 
sufficient quantity to enable them to provide for the suste- 
nance of themselves and their families should be assured, - 
protected, and preserved; 

And whereas it is expedient that existing native customs 
with regard to the use and occupation of land should, as 
far as possible, be preserved; 

And whereas it is expedient that the rights and obligations 
of the Government in regard to the whole of the lands 
within the boundaries, of the protectorate of Northern 
Nigeria and also the rights and obligations of cultivators 
or other persons claiming to have an interest in such lands 
should be defined by law: 

1. This proclamation may be cited as the land and native 
rights proclamation. 

2. The whole of the lands of the protectorate of Northern 
Nigeria, whether occupied or unoccupied on the date of the 
commencement of this proclamation, are hereby declared 
to be native lands [certain lands being reserved by a proviso]. 

3. All native lands, and all rights over the same, are 
hereby declared to be under the control and subject to the 
disposition of the governor, and shall be held and adminis- 
tered for the use and common benefit of the natives of 
Northern Nigeria; and no title to the occupation and use of 
any such lands shall be valid without the consent of the 
governor. | 

4. The governor, in the exercise of the powers conferred 

9 


130 The Question of Aborigines 


upon him by this proclamation with respect to land, shall 
have regard to the native laws and customs existing in the 
district in which such land is situated. 

5. A title to the use and occupation of land shall be 
termed a right of occupancy, and the grantee thereof shall 
be termed the occupier. 

6. It shall be lawful for the governor— 

(2) To grant rights of occupancy to natives of 
Northern Nigeria and to persons other than 
natives of Northern Nigeria; 

(b) To demand a rental for the use of any native 
lands granted to any native or non-native; and, 

(c) To revise the said rental at intervals of not more 
than seven years. 

Such rights of occupancy may be for a definite or for an 
indefinite term, and may be granted subject to the terms 
of any contract which may be made between the governor 
and the occupier not inconsistent with the provisions of 
this proclamation, or any of them; 

Provided, that the governor shall not (save in the case of 
a right granted in connection with a mining lease) grant 
rights of occupancy free of rent or upon any conditions 
which may preclude him from receiving the rent at intervals 
of not more than seven years. 

7. An occupier shall have exclusive rights to the land 
granted to him against all persons except the governor. 

8. It shall not be lawful for any occupier to alienate his 
right of occupancy by sale, mortgage, or transfer of posses- 
sion without the consent of the governor first had and 
obtained. And any such sale, mortgage, or transfer effected 
without the consent of the governor shall be null and void. 

9. It shall not be lawful for the governor to revoke rights 
of occupancy granted as aforesaid except for good cause. 
‘““Good cause’’ shall include— 

(2) Non-payment of rent, taxes, or other duties 
imposed upon the land; 

(b) Alienation by sale, mortgage, or transfer of pos- 
session without the consent of the governor ;and, 


Rights of Aborigines in Land 131 


(c) Requirement of the land by the Government 
for public purposes. 

Provided always that— 

(a) Should the rental demanded by the governor 
from the occupier be raised on revision, the 
occupier may surrender his rights and shall 
in that case be entitled to compensation from 
the governor to the value at the date of sur- 
render of his unexhausted improvements; 
and, 

(6) Should any occupier be compelled to surrender 
his rights owing to the requirement of the land 
by the Government for public purposes, he 
shall be entitled to compensation for the value 
at the date of surrender of his unexhausted 
improvements and for the inconvenience 
caused by his disturbance. 

10. The devolution of the rights of an occupier upon 
death shall be regulated, in the case of natives, by the 
native custom existing in the locality in which the land is 
situated, and, in the case of non-natives, by the law of the 
deceased person’s domicile. 

11. (1) It shall be lawful for the governor, when granting 
a right of occupancy, to issue a certificate thereof under his 
hand and the seal of the protectorate in the form 1 set out 
in the second schedule hereto, or to the like effect. Any 
such certificate shall be deemed to be an instrument affect- 
ing land, and shall be registered in accordance with the 
provisions of Part II of this proclamation. (2) Any person 
entitled to a right of occupancy may apply for a certificate, 
which may be granted in the same manner and subject to 
the same conditions as in subsection 1 hereof. 

12. Every such certificate shall be deemed to contain 
provisions to the following effect: 

(a) That the occupier binds himself to the governor 
to pay compensation for any damage caused 
to native individuals or communities in the 
exercise of the rights granted to him and to 


132, The Question of Aborigines 


accept the ruling of the governor as to the 
amount of such compensation; 

(b) That the occupier binds himself to pay to the 
governor the amount found to be payable in 
respect of any unexhausted improvements ex- 
isting on the land at the date of his entering 
into occupation; 

(c) That the occupier binds himself to pay to the 
governor the rent fixed by the governor and 
any rent which may be fixed on revision 
in accordance with the provisions of this 
proclamation. 

13. In determining the rent to be demanded for any given 
land and on any subsequent revision of rent the governor 
shall take into consideration the rent obtained or obtainable 
in respect of any other like land in the immediate neighbor- 
hood, and shall fix the rent at the highest amount that can 
reasonably be obtained for the land; provided that in deter- 
mining the amount of any rent, whether original or revised, 
the governor shall not take into consideration any value 
due to capital expended upon the land by the same or any 
previous occupier during his term or terms of occupancy, 
or any increase in the value of the land the rental of which 
is under consideration, due to the employment of such 
capital. 

14. All claims arising under the provisions of this procla- 
mation in respect of any right granted under a certificate 
of occupancy shall be prosecuted before the Supreme Court, 
which court shall have jurisdiction throughout the protec- 
torate accordingly; and the chief justice of the protectorate 
shall have power to make rules as to the prosecution of 
such claims and matters relating thereto in the same manner 
as in matters concerning the ordinary jurisdiction of the 
court. 

15. Nothing in this proclamation shall be deemed to 
affect the validity of any title to land or any interest 
therein acquired before the date of the commencement 
hereof, but all such titles shall have the same effect and 


Rights of Aborigines in Land 133 


validity in all respects as though this proclamation had not 
been enacted. 


(Revised Laws of Northern Nigeria, 1910, ch. 65, p. 667.) 


A land system similar to that of Northern Nigeria 
was put in force by the British Government in British 
New Guinea in 1906. All the land in the colony, except 
21,920 acres of freehold, was acquired by the Crown 
and leased for 99 years, with free survey and free 
of rent for 10 years, rent being payable after Io 
years. 

(Papua, or British New Guinea, by J. H. P. Murray, 
London, 1912, pp. 339-344.) 

In a publication of the International Colonial Insti- 
tute of Brussels, in six volumes, which appeared be- 
tween 1898 and 1905, entitled ‘‘The Land System in 
Colonies’ —Le Régime Foncier des Colontes, the princi- 
ples applied by the different States respecting the dis- 
position of the land in countries inhabited by aboriginal 
tribes brought under their sovereignty were examined 
and the important statutes and regulations quoted in 
full. From this study it appears that the system pur- 
sued by the United States in its dealings with lands 
occupied by aborigines is followed by all colonizing 
States. The extent of the lands regarded as “‘vacant,”’ 
and hence as belonging to the colonizing State in fee 
simple, as ‘‘public lands,’’ or ‘‘Crown lands’’ varies 
according to peculiar circumstances of each case. The 
rights respecting the land conceded by the colonizing 
State to the aboriginal tribes or communities and their 
members also vary in character according to the ca- 
pacity of the aborigines and the nature of the aboriginal 
customs with regard to individual use or ownership of 
the land. 


In colonies which contain large tracts of land suitable 


134 The Question of Aborigines 


only for grazing purposes where the aborigines have 
flocks and herds and the principal business of the colo- 
nists is stock raising, the settlement of the land question 
is always difficult. The colonists and the aborigines are 
in such cases in economic competition with each other 
and, the native operations being unscientifically con- 
ducted, the competition tends to become bitter. More- 
over, the need of the aborigines to have land for grazing 
induces them to claim large tracts, which the colonists 
are unwilling to allow them. Thus the economic com- 
petition tends to lead to war between the colonists and 
the aborigines, which invariably results in the more or 
less complete extinction of the aborigines. The set- 
tlement of the land question then proceeds on the basis 
of granting the survivors of the defeated tribes such 
compensation in reserves of land as the embittered 
feelings of the colonists will allow. Such has been the 
experience in the grazing regions of Australia and south- 
west Africa. 

In States and self-governing colonies in regions suit- 
able for white residence and capable of supporting a 
manufacturing and mining population, the civilized 
population tends to overwhelm the aborigines and to 
reduce their land holdings to a minimum. The close 
contact of the two elements of the population permits of 
the handling of the problem by direct means, and the 
tendency is, in case the aborigines have been heretofore 
deprived of a just proportion of the lands, for States 
and self-governing colonies to allot public land to them 
or even to acquire land by condemnation in order to 
satisfy their just claims as original occupants of the soil. 
This practice seems to have been adopted since about 
1905 by the civilized States exercising sovereignty in 
the southern part of Africa. Especially where the labor 
problem becomes acute and the economic needs of the 


Rights of Aborigines in Land 135 


colonists coincide with the moral and legal duties of 
the colonizing State, this more liberal practice concern- 
ing the adjustment of the rights of the aborigines to 
land tends to prevail. 


CHAPTER VII 


THE RIGHTS OF ABORIGINES TO PERSONAL LIBERTY AND 
PERSONAL PROPERTY 


(A) ENSLAVEMENT OF ABORIGINES 


HE question of the right of aboriginal peoples to 
personal liberty is inextricably interwoven with 
the question of slavery and the slave trade, 

since it is only as respects aboriginal peoples, and on the 
ground of guardianship that slavery and the slave trade 
have ever been accepted as legal according to the law of 
nations. Slavery has been justified on the ground that 
a State may delegate to private persons its functions 
concerning the uncivilized persons under its sovereignty 
as political and civil minors. ‘The situation of slaves 
has been regarded as resembling that of civilized minors, 
whom the State requires to be apprenticed to persons 
expert in an art or a science, so that they may be 
trained in the art or science. The slave trade has been 
justified as an incident of the power of the State to 
authorize or permit the enslavement of uncivilized 
persons. Slavery of uncivilized peoples has also been 
justified by the same course of reasoning that villeinage 
and serfdom were justified under the Roman and feu- 
dal systems, the foundation principle being that all 
society should be organized in grades of supremacy 
corresponding to the actual social stratification. 

When the first negroes were persuaded to leave 
Africa and transported across the ocean to be the slaves 

136 


Personal Rights of Aborigines 137 


of civilized individuals, who were themselves influenced 
in their actions by Christian priests, the institution of 
slavery and of the slave trade appeared to be but a 
means for the civilization of the African aborigines, 
especially when liberal provisions were made for the 
manumission of slaves or for their naturalization upon 
attaining to civilized knowledge and skill. 

As the process of deporting negroes from Africa for 
enslavement increased in extent, and as slavery and 
the slave trade became more and more commercially 
profitable, these institutions began to reveal themselves 
in their true character as abominations inconsistent with 
the fundamental principles upon which civilization is 
based. 

Nevertheless, when the question of the rights and 
duties of civilized States toward aboriginal populations 
came up for international decision in the middle of the 
eighteenth century, the unanimous conclusion was that 
each State was under no international obligation what- 
ever as to the manner of exercising its guardianship 
over aborigines, and that under the law of nations 
neither slavery nor the slave trade was illegal, though, 
on account of its nature, its prohibition by any State 
to its own citizens could not be a cause of complaint 
by other States. 

The declaration of the fundamental rights of the 
individual in the preamble of the American Declaration 
of Independence in 1776, the similar French Declaration 
in 1791, and the act of France abolishing slavery of 
1794 (which continued in force till 1802, when the old 
system of slavery and the code noir were reestablished 
by Napoleon), led to a reconsideration of the principles 
of the law of nations as respects enslavement of aborigi- 
nal peoples, and to a movement for abolishing and out- 
lawing the slave trade. 


138 The Question of Aborigines 


The act of the United States of 1794, prohibiting to 
American citizens the slave trade with colonies of for- 
eign States, was followed by the entire prohibition of 
the slave trade by Great Britain to its citizens in 1807 
and the entire prohibition of the trade by the United 
States to its citizens in 1808. These acts led to cap- 
tures of slave-trading vessels, and the admiralty courts 
were called upon to declare and apply the principles 
of the law of nations in this regard. 

In the case of The Amedie, decided in the British 
Court of Admiralty in 1811, it was said by Sir William 
Grant (Dodson’s Admiralty Reports, p. 84, note): 


In all the former cases of [this] kind which have come 
before this court, the slave trade was liable to considera- 
tions very different from those which belong to it now. It 
had at that time been prohibited [as far as respected carry- 
ing slaves to the colonies of foreign nations] by America, 
but by our own laws it was still allowed. It appeared to us, 
therefore, difficult to consider the prohibitory law of Amer- 
ica in any other light than as one of those municipal regu- 
lations of a foreign State of which this court could not take 
any cognizance. But by the alteration which has since 
taken place, the question stands on different grounds, and 
is open to the application of very different principles. The 
slave trade has since been totally abolished by this country, 
and our legislature has pronounced it to be contrary to the 
principles of justice and humanity. Whatever we might 
think as individuals before, we could not, sitting as judges 
in a British court of justice, regard the trade in that light 
while our own laws permitted it. But we can now assert 
that this trade can not, abstractedly speaking, have a 
legitimate existence. 

When I say abstractedly speaking, I mean that this 
country has no right to control any foreign legislature that 
may think fit to dissent from this doctrine, and to permit 
to its own subjects the prosecution of this trade; but we 


Personal Rights of Aborigines 139 


have now a right to affirm that prima facie the trade is 
illegal, and thus to throw on claimants the burden of proof 
that, in respect of them, by the authority of their own laws, 
it is otherwise. As the case now stands, we think we are 
entitled to say that a claimant can have no right, upon 
principles of universal law, to claim the restitution, in a 
prize court, of human beings claimed as his slaves. He 
must show some right that has been violated by the cap- 
ture, some property of which he has been dispossessed, and 
to which he ought to be restored. In this case the laws of 
the claimant’s country allow of no property such as he 
claims. There can, therefore, be no right to restitution. 


Commenting on the case of The Amedie, Sir William 
Scott, in the High Court of Admiralty in the case of 
The Fortuna, decided March 12, 1811 (Dodson, 81), 
said: 


A late decision, in the case of The Amedie, seems to have 
gone the length of establishing a principle that any trade 
contrary to the general law of nations, although not tending 
to or accompanied with any infraction of the belligerent 
rights of that country whose tribunals are called upon to 
consider it, may subject the vessel employed in that trade 
to confiscation. The Amedie was an American ship em- 
ployed in carrying on the slave trade; a trade which this 
country, since its own abandonment of it, has deemed 
repugnant to the law of nations, to justice and humanity, 
though without presuming so to consider and treat it, where 
it occurs in the practice of the subjects of a State which 
continues to tolerate and protect it by its own municipal 
legislation; but it puts upon the parties who are found in 
the occupation of that trade the burden of showing that it 
was so tolerated and protected; and on failure of producing 
such proof, proceeds to condemnation. . . . The prin- 
ciple laid down in that case appears to be that the slave 
trade, carried on by a vessel belonging to a subject of the 
United States, is a trade which, being unprotected by the 


140 The Question of Aborigines 


domestic regulations of the United States, subjects the 
vessel engaged in it to a sentence of condemnation. 


In the case of The Diana, decided in the British Court 
of Admiralty in 1813, the court, speaking by Sir Wil- 
liam Scott, said (Dodson, 95) : 


This trade was at one time, we know, universally allowed 
by the different nations of Europe and carried on by them 
to a greater or less extent, according to their respective 
necessities. Sweden, having but small colonial possessions, 
did not engage very deeply in the traffic, but she entered 
into it as far as her convenience required for the supply of 
her own colonies. The trade, which was generally allowed, 
has been since abolished by some particular countries; but 
I am yet to learn that Sweden has prohibited its subjects 
from engaging in the traffic, or that she has abstained from 
it either in act or declaration. Our own country, it is true, 
has taken a more correct view of the subject and has 
decreed the abolition of the slave trade, as far as British 
subjects are concerned, but it claims no right of enforcing 
its prohibition against the subjects of those States which 
have not adopted the same opinion with respect to the 
injustice and immorality of the trade. 

The principle . . . laid down by the superior court [in 
the case of The Amedie| . . . was that where the munici- 
pal laws of the country to which the parties belong have 
prohibited the trade, the tribunals of this country will hold 
it to be illegal upon the general principles of justice and 
humanity and refuse restitution of the property; but on 
the other hand, though they consider the trade to be gen- 
erally contrary to the principles of justice and humanity 
where not tolerated by the laws of the country, they will 
respect the property of persons engaged in it under the 
sanction of the laws of their own country. The lords of 
appeal did not mean to set themselves up as legislators for 
the whole world, or presume in any manner to interfere 
with the commercial regulations of other states, or to lay 


Personal Rights of Aborigines 141 


down general principles which aim to overthrow their legis- 
lative provisions with respect to the conduct of their own 
subjects. 


At the Congress of Vienna the British Government, 
which had succeeded in 1814 in making a treaty with 
France for the prohibition of the slave trade to its 
citizens at the expiration of eight years, endeavored to 
obtain a general pronouncement of the nations forming 
the Concert of Europe against the slave trade. The 
preliminary question, whether the slave trade should 
be declared to be illegal by the existing law of nations, 
or should be recognized as legal by the existing law 
but subject to abolition by the uniform and cooperative 
action of the nations as contrary to humanity under 
existing conditions, was settled by Great Britain making 
a treaty with the United States providing for compensa- 
tion for all slaves of American citizens captured during 
the war and a treaty with Portugal fixing the damages 
to be paid by Great Britain for its illegal capture of 
the Portuguese ships. 

Almost immediately upon the signing of the treaty 
between Great Britain and Portugal, a special series of 
meetings of the eight powers then assembled in the so- 
called Congress of Vienna was held to consider the 
measures to be taken by uniform and cooperative action 
to abolish the slave trade. The following are the 
material parts of the proceedings of these meetings 
(British and Foreign State Papers, 1815-16, pp. 


946-948) : 


Lord Castlereagh renewed his proposition that the 
Congress take up the question of the measures to be taken 
to bring about the cessation universally of the negro slave 
trade. He stated that, in his opinion, it was not necessary 
to appoint for this purpose a committee properly so called, 


142 The Question of Aborigines 


but that the proper course was to consider the question in 
the assembly of the eight powers. He proposed that each 
power should select one of its plenipotentiaries and that 
these persons should hold special sessions exclusively de- 
voted to this object, making report of the result of their 
deliberations to the general assembly of the Congress. 

The Count of Palmella [plenipotentiary for Spain] ob- 
jected to this proposal, declaring that he saw no reason 
why the general arrangement theretofore observed by the 
Congress, that only the powers more or less interested in 
the matters under consideration should take part in the 
discussion of these matters, should not equally apply to 
the question of the abolition of the negro slave trade; a 
question which concerned exclusively the powers possessing 
colonies. He was opposed to the proposal to deliberate 
on the question in a committee composed of plenipoten- 
tiaries of the eight powers. He thought that the powers 
not possessing colonies, after having committed themselves 
to the principle of abolition, could not be considered as 
entirely impartial as respects those of the powers having 
colonies which were hindered in putting the principle into 
execution by their particular interests; and might, perhaps, 
influenced by a zeal praiseworthy in itself, hasten the prog- 
ress of abolition at the expense of the States whose special 
circumstances obligated them to proceed with the greatest 
prudence. 

The Chevalier Labrador [plenipotentiary of Portugal], 
stated that he shared the opinion of Count Palmella, and 
observed : That inasmuch as all the powers were already 
agreed upon the general principle of the abolition of the 
slave trade, it would be useless to make it a subject of dis- 
cussion; that the only matters to be considered were the 
measures for carrying the principle into effect, and, above 
all, the fixing of the date at which the trade should cease; 
that these matters, inasmuch as they involve entirely de- 
tails and local considerations, could not properly be dis- 
cussed except by the powers possessing colonies and that 
it would be, if not unjust, at least useless, to admit the other 


Personal Rights of Aborigines 143 


powers; that it was an easy matter to condemn the slave 
trade by general assertions of principle, but that those 
powers whose colonial systems had been based up to this 
time upon the importation of negroes, found themselves, 
so to speak, placed between two injustices, one toward 
the inhabitants of Africa, the other toward their own sub- 
jects, the agricultural proprietors in the colonies, whose 
interests would be seriously affected by a too sudden 
change in the present system; that this last consideration 
was of special importance for Spain, because the state of 
agitation prevailing in the Spanish colonies on the mainland 
in America imposed on the Spanish Government the duty 
of redoubling its efforts for the conservation of peace and 
prosperity in the islands of Cuba and Porto Rico. He con- 
cluded by declaring that his Catholic Majesty, though in 
the highest degree desirous of abolishing the slave trade, 
could not bind himself to the abolition of it at the end of a 
shorter time than eight years. 

The plenipotentiaries of Russia, Austria, Prussia, and 
Sweden [Count Nesselrode, Prince Metternich, Baron Hum- 
boldt, and Count Lowenhielm] announced it as their opin- 
ion that as a question of public morality and of humanity 
the abolition of the slave trade undoubtedly interested 
all the powers; that those not possessing colonies did not 
pretend to direct the details of carrying into effect such a 
measure; but that inasmuch as there was a division of 
Opinion among the powers directly interested in this matter 
as respects these details, and particularly as regards the 
date to be fixed for abolition, the intervention of the others 
will be always useful in order to conciliate the opinions and 
bring about a result conformable to the views of humanity 
at large. 

Lord Castlereagh declared that England, though attach- 
ing to the abolition of the slave trade a very far-reaching 
importance, was nevertheless far from wishing to lay down 
the law in this respect to any other power; that the period 
of the duration of the trade and the manner of arranging 
gradually for the suppression of this traffic were undoubt- 


144 The Question of Aborigines 


edly questions upon which each power possessing colonies 
might properly have its particular views, but that a com- 
mittee exclusively composed of the plenipotentaries of these 
powers would not respond to the object which he had 
in mind in introducing the discussion of this matter; 
that it was a question of knowing authentically the sen- 
timents and point of view of the principal powers in re- 
gard to a matter which was also of general interest; and 
that he regarded the manner of deliberation proposed by 
him as the only one suitable to furnish in this respect a 
satisfactory elucidation. 

At the conclusion of the discussion Prince Metternich for- 
mulated the point on which the assembly was to pronounce 
in the following language: ‘‘Ought the matter of the aboli- 
tion of the negro slave trade to be sent in the first instance 
to a committee composed of plenipotentiaries of the powers 
possessing colonies or ought it to be considered ab initio by 
the assembled plenipotentiaries of the eight powers?”’ 

The plenipotentiaries of Portugal and Spain persisted 
in their opinion that if the discussion was adjudged to be 
absolutely necessary, only the ministers of the powers pos- 
sessing colonies should be admitted to participate. Count 
Palmella asked, further, that in case the contrary opin- 
ion should prevail, there should be inserted in the min- 
utes of the proceedings a statement to the effect that the 
plenipotentiaries of Portugal, without withdrawing from the 
common deliberations, do not regard the question which 
is to be considered as one of public law. On the other hand, 
the plenipotentiaries of England, Russia, Austria, Prussia, 
Sweden, and France voted against the special committee 
and for the intervention of the eight powers in this 
question. 

Lord Castlereagh, referring to his original proposal, said 
that he did not mean to insist on only one plenipotentiary 
of each power being admitted to the deliberations; that the 
number of those who should participate was immaterial; 
that his intention had only been to have certain special 
sessions devoted to this matter, in order that it might be 


Personal Rights of Aborigines 145 


considered in a consecutive manner and so as to fit in with 
the time required for other business. 


At the conference on February 4, 1815, consideration 
was given the British proposition to establish a per- 
manent commission of surveillance, which should hold 
its meetings in London and was to be composed of the 
diplomatic representatives of the eight powers at the 
Courts of London and Paris. The resolution was as 
follows (British and Foreign State Papers, 1815-16, 


PP. 963-966) : 


In order to place the powers in a position to carry out 
more effectively and more completely by amicable negotia- 
tions their beneficent intentions with regard to the abolition 
of the negro slave trade, as stated in their joint declaration, 
and in order to establish between themselves and with 
other governments, a concert which shall be adapted both 
to break up illegal slave trade on the coast of Africa, and 
at the same time to prevent infraction of the rights of any 
independent State by the armed vessels of another State, 
it is proposed : 

That the ministers accredited to London and Paris by 
the powers now in conference and by other powers who may 
desire to join in the arrangement, be authorized to discuss 
conjointly the important matters above mentioned, and 
be directed to make a joint report at the end of each year, 
for the information of their respective courts, upon the 
situation as respects trade in African negroes, based upon 
the most recent information obtainable, and in regard to 
the progress made by the nations concerned in diminishing 
or abolishing the trade. 


The Chevalier de Labrador [plenipotentiary for 
Spain], objected to such an arrangement, asserting that 
“everything which relates to the slave trade is a domes- 
tic matter for each State, and not at all within the 


Io 


146 The Question of Aborigines 


jurisdiction of the congress, which has not been called 
together to regulate the legislation of the nations, or to 
decide questions of morality’’; and that ‘‘consequently 
it is only by an act of pure condescension on the part 
of the powers which have colonies that the congress is 
considering the slave trade.’’ He then announced that 
the King of Spain “‘would not accord to one or more 
powers the right of exercising upon his subjects any 
act of surveillance under the pretext that they have 
violated a rule which has been established.”’ 

Prince Metternich, evidently expressing the senti- 
ments of the majority of the congress, said, as reported 
in the minutes: 


He was of the opinion that the project advanced by Lord 
Castlereagh was not merely practicable and useful, but was 
really necessary, in order to follow up and keep before the 
public the question under discussion and to prevent it from 
being again dropped and consigned to oblivion after the 
congress. He believed that in order to put each government 
in the position of taking part in the deliberations regarding 
the execution of measures and the development of new 
measures, and of knowing the state of things at any given 
period, it is necessary that there should be a central point 
where each State should be able to inform itself. For the 
same reasons he approved the feature of annual reports 
upon the progress made toward abolition and the obstacles 
encountered. 


The views of Austria, advanced by Metternich, were 
approved by the plenipotentiaries of Russia and Prus- 
sia, but the colonial powers, other than Great Britain, 
objecting, the resolution failed. 

Lord Castlereagh then proposed a plan for the eco- 
nomic boycott of States not joining in the abolition of 
the slave trade. His proposition was as follows: 


Personal Rights of Aborigines 147 


As the concluding act of the deliberations regarding the 
means of causing the entire cessation of the slave trade, 
the powers now convened for this object are invited to 
pronounce (independently of their general declaration) their 
full and entire adhesion to the additional article of the treaty 
concluded at Paris between Great Britain and France as 
indicating, according to their opinion, the maximum period 
which can reasonably be needed or permitted for the con- 
tinuance of the trade; and to declare that while recognizing 
the duty of respecting scrupulously the rights of other 
States, and entertaining the hope of agreeing amicably 
with them on this important branch of the question, the 
powers believe that they have the moral obligation, in case 
their attempts at amicable agreement should fail, not to 
permit that the consumption of colonial products in their 
territories should become the means of encouraging and 
prolonging gratuitously so pernicious a traffic; and to now 
declare that in view of the existence of such a moral obli- 
gation they reserve to themselves the right, in case the 
negro slave trade should be continued by any State beyond 
a period justified by the actual necessity of the case, to 
take suitable measures to obtain such colonial products 
either from the colonies belonging to the States which have 
not permitted a gratuitous toleration of the traffic, or from 
the vast regions of the globe furnishing the same products 
by the labor of their own inhabitants. 


To this both Portugal and Spain objected. The min- 
utes of the congress are as follows: 


Count Palmella said that the project implied the inten- 
tion of compelling those powers which were not able, for 
‘particular reasons, to abolish the trade within a certain 
number of years to submit themselves to the system of 
those who find themselves able to do so within the term, 
an intention which was not consistent with the principles 
accepted as the basis of the conferences and recognized in 
the declaration. 


148 The Question of Aborigines 


The plenipotentiary of Spain declared that if such a 
measure should be adopted by any power whatsoever, His 
Majesty, the King of Spain, without disputing with this 
power its right to act according to its own principles, would 
have recourse to just reprisals by inducing the passage of a 
prohibitive law against the most valuable branch of the 
commerce of the country whose Government had provoked 
this act of reciprocity. 


The project for an international commission of sur- 
veillance to advise the powers in their cooperative 
measures for the abolition of the slave trade having 
failed, the far more drastic proposition for economic 
boycott against any colonial power refusing to cooperate 
necessarily met the same fate. An arrangement was 
afterwards made whereby the ministers to the French 
and British courts held meetings in London to discuss 
the measures for the abolition of the slave trade. 

The declaration of the congress was as follows 
(British and Foreign State Papers, 1815-16, pp. 971, 


972) : 


Declaration of the Eight Courts, relative to the universal 
abolition of the trade in negroes, Vienna, February 8, 
I8I5. 

The plenipotentiaries of the powers which signed the 
Treaty of Paris of May 30, 1814, assembled in conference, 
having taken into consideration: 

That the commerce kriown under the name of “trade 
in the negroes of Africa’? has been regarded by just and 
enlightened men of all times as repugnant to the principles 
of humanity and of universal morality; 

That the particular circumstances to which this commerce 
owed its rise, and the difficulty of suddenly interrupting 
its course, have had the effect to conceal to a certain extent 
the odious results which flow from its maintenance, but 
that at last the public voice has raised itself in all the 


Personal Rights of Aborigines 149 


civilized countries demanding that it be suppressed as soon 
as possible; 

That since the character and details of this commerce 
have become better known and the evils of all kinds, which 
are incident to it, have been completely disclosed, several 
of the European Governments have taken a determined 
resolution to bring about its cessation, and that, one after 
another, the powers possessing colonies in the different 
parts of the world have recognized, either by legislative 
acts, or by treaties and other formal engagements, the obli- 
gation and the necessity of abolishing it; 

That by a separate article in the last Treaty of Paris, 
Great Britain, and France engaged themselves to combine 
their efforts at the Congress of Vienna to cause to be pro- 
nounced by all the powers of Christianity the universal and 
definitive abolition of the trade in negroes; 

That the plenipotentiaries assembled in this congress can 
not better do honor to their mission, fulfil their duty, and 
manifest the principles which guide their august sovereigns, 
than in laboring to realize this engagement and in proclaim- 
ing, in the name of their sovereigns, the wish to put an 
end to an evil which has so long desolated Africa, degraded 
Europe, and afflicted humanity; 

The said plenipotentiaries have agreed to open their 
deliberations in regard to the means of accomplishing an 
object so salutary by a solemn declaration of the principles 
which have directed them in this work. 

In consequence of the foregoing, and being duly author- 
ized to this act by the unanimous adhesion of their respec- 
tive courts to the principle announced in the said separate 
article of the Treaty of Paris, they declare in the face 
of Europe that, regarding the universal abolition of the 
trade in negroes as a measure particularly worthy of their 
attention, in conformity with the spirit of the age and with 
the generous principles of their august sovereigns, they are 
animated by a sincere desire to cooperate in a most prompt 
and most effective execution of this measure by all the means 
at their disposition, and to act in the employment of these 


150 The Question of Aborigines 


means with all the zeal and all the perseverance which they 
owe to so great and admirable a cause. 

Too well instructed, however, in the sentiments of their 
sovereigns not to foresee that, however honorable may be 
the end in view, they will not pursue it without making just 
arrangements taking into account the interests, the customs, 
and even the prejudices of their subjects, the said plenipo- 
tentiaries, recognizing at the same time that this general 
declaration can not prejudge the term which each power 
under its particular circumstances may regard as most 
convenient for the definitive abolition of the commerce in 
negroes, it follows from the foregoing that the determination 
of the time at which this commerce shall universally cease 
will be an object of negotiation between the powers, it 
being understood that no proper means to assure and 
accelerate the progress toward abolition will be neglected 
and that the reciprocal engagement contracted by the 
present declaration between the sovereigns who have taken 
part in it will be considered as fulfilled only at the moment 
when a complete success shall have crowned their combined 
efforts. 

In bringing this declaration to the attention of Europe, 
and all the civilized nations of the earth, the said plenipo- 
tentiaries are confident of engaging all the other Govern- 
ments, and especially those which, by abolishing the trade 
in negroes, have already manifested the same sentiments, 
to lend their assistance in a cause the final triumph of which 
will be one of the most admirable monuments of the age 
which has embraced it and which will have brought it toa 
glorious end. | 


At the conference at London between Austria, 
France, Great Britain, and Russia, from December 14, 
1817, to February 12, 1818, and at Aix-la-Chapelle, 
from November 2 to November 18, 1818, to concert 
measures for the suppression of the slave trade (British 
and Foreign State Papers, 1818-19, pp. 21 to 88) Lord 


Personal Rights of Aborigines 151 


Castlereagh proposed, in behalf of Great Britain, two 
measures. The first was, the concession by all the 
powers of a reciprocal right of search of ships suspected 
of slave trade, limited to that part of the ocean to be 
described in the treaty frequented by slave ships, and 
regulated so as to avoid harshness; and the second, the 
establishment of international prize courts composed 
of representatives of the powers so contracting to be 
located on the coast of Africa and on or near the coast 
of America. 

The same proposal was made to the United States. 
(British and Foreign State Papers, 1819-20, pp. 373- 
385.) 

Prior to the conference at Aix-la-Chapelle Great 
Britain had succeeded in negotiating treaties to this 
effect with Spain, Portugal, and Holland. The United 
States had passed laws in 1818 and 1819, providing for 
the punishment of its own citizens engaged in the slave 
trade and for the care of rescued negroes. 

Austria, France, Prussia, Russia, andthe United States 
refused to enter into the proposed arrangement, regarding 
a reciprocal right of search as derogatory to sovereignty 
and likely to lead to ill-feeling and bloodshed. They 
considered an international court for the trial of crimes 
committed in time of peace on the high seas to be incon- 
sistent with the constitutional right of the citizen to be 
tried by the courts of his own country; the act being 
criminal only by virtue of a national statute, and not 
by virtue of the law of nations. 

At the conference of Aix-la-Chapelle, the plenipo- 
tentiary for Russia proposed the establishment of an 
international ‘‘institution,’’ which would in fact have 
an international commission of surveillance. It was to 
consist of a body of delegates of the European powers, 
who were to have their headquarters at some suitable 


152, The Question of Aborigines 


settlement on the west coast of Africa and to hold ses- 
sions there. The commission was to exercise the gen- 
eral surveillance over the measures for abolishing the 
slave trade, to see that the principles and rules agreed 
upon at international conferences were executed, and 
to adjudicate cases of alleged violation of such principles 
and rules with power of condemnation and punishment. 
The Russian plenipotentiary also proposed an inter- 
national fleet to carry into effect the law and the deci- 
sions of the institution. This proposal was rejected 
by Great Britain. (British and Foreign State Papers 
1818-19, pp. 67 to 69.) 

In an article by W. Alison Philips on The Congresses 
of 1815 to 1822, in the Cambridge Modern History 
(vol. 10, pp. I-39), it is said, referring to the Congress 
of Aix-la-Chapelle: 


Of more general importance were the discussions on the 
two great questions of the slave trade and the Barbary 
pirates. On neither of these was any decision reached. 
The slave trade had been condemned in principle by the 
Congress of Vienna; and, as the outcome of endless pour- 
parlers, nearly all the European States had given at least a 
formal assent to the British demand for its suppression. 
In practice, however, Great Britain alone showed any ac- 
tivity in carrying out the work; and the trade continued to 
flourish under the protection of national flags. The British 
Government now proposed a reciprocal right of search, to 
be carried out by war vessels specially designated by the 
powers for that purpose. But, in view of the overwhelming 
superiority of England at sea, this was taken as tantamount 
to a license to British cruisers to interrupt the commerce of 
all nations, and the powers rejected it. A counter proposal 
of the Emperor Alexander to establish an international 
board of control on the west coast of Africa, with an inter- 
national ‘fleet commissioned to suppress the trade, met with 
no better success. 


Personal Rights of Aborigines 153 


These proceedings with reference to the abolition of 
the slave trade by uniform and cooperative action in 
which the United States participated led the United 
States to consider its policy as respects Africa. It was 
then engaged in endeavoring to settle satisfactorily its 
Indian problem by removing the Indians to the western 
territory, there to be governed as municipal communi- 
ties composed of dependent persons in a state of ward- 
ship and pupilage. The act of 1819 required the Presi- 
dent to keep American warships on the west coast of 
Africa to capture American ships engaged in the slave 
trade and enjoined upon the commanders to settle the 
rescued negroes in Africa. In President Monroe’s mes- 
sage of December 17, 1819, he recommended that the 
United States agents be sent to the west coast of Africa 
to oversee the settlement of these negroes, but 


With the express injunction to exercise no power founded 
on the principle of colonization, or other power than that of 
performing the benevolent offices above recited, by the 
permission and sanction of the existing government under 
which they may establish themselves. 


The question of the legality of the slave trade under 
the law of nations came before the British civil courts 
in 1820 in the case of Madrazo v. Willes, (3 Barn. and 
Ald. 353). This was an action brought by a Spaniard 
against a commander of a British naval vessel for 
damages for the seizure of a ship and a cargo of slaves. 

Abbott, C. J., delivering the general opinion, held 
that the British statute prohibiting the slave trade had 
no force except with reference to citizens of Great 
Britain, and that the ships of Spain, which at the time 
of capture permitted the trade, could not be seized by 
British naval vessels. Bayley, J., in a concurring opin- 
ion, said: 


154 The Question of Aborigines 


It is true that, if this were a trade contrary to the law of 
nations, a foreigner could not maintain this action. But 
it is not; and as a Spaniard can not be considered as bound 
by the acts of the British legislature prohibiting this trade, 
it would be unjust to deprive him of a remedy for the wrong 
which he has sustained. 


Best, J., in his concurring opinion, said : 


If a ship be acting contrary to the general law of nations, 
she is thereby subject to confiscation; but it is impossible to 
say that the slave trade is contrary to what may be called 
the common law of nations. 


In the case of The Antelope (10 Wheat., 66), decided 
in 1825 by the United States Supreme Court, the ques- 
tion was whether certain Africans, originally shipped 
by Spaniards and Portuguese for sale as slaves and 
found on a Spanish ship, were freed by being brought 
into a United States port by a United States revenue 
cutter in time of peace. It was held by the court that 
as they were in a Spanish vessel and the slave trade 
was allowed by the laws of Spain, they must be given 
up to the consuls of Spain and Portugal to be returned 
to their owners. 

Chief Justice Marshall, in delivering the opinion of 
the court, said : 


The question whether the slave trade is prohibited by the 
law of nations has been seriously propounded, and both the 
affirmative and negative of the proposition have been main- 
tained with equal earnestness. 

That it is contrary to the law of nature will scarcely be 
denied. That every man has a natural right to the fruits 
of his own labor, is generally admitted; and that no other 
person can rightfully deprive him of those fruits, and ap- 
propriate them against his will, seems to be the necessary 


Personal Rights of Aborigines 155 


result of this admission. But from the earliest times war 
has existed, and war confers rights in which all have ac- 
quiesced. Among the most enlightened nations of antiquity, 
one of these was, that the victor might enslave the van- 
quished. This, which was the usage of all, could not be 
pronounced repugnant to the law of nations, which is cer- 
tainly to be tried by the test of general usage. That which 
has received the assent of all, must be the law of all. 

Slavery, then, has its origin in force, but as the world 
has agreed that it is a legitimate result of force, the state 
of things which is thus produced by general consent, can 
not be pronounced unlawful. 

Throughout Christendom this harsh rule has been ex- 
ploded and war is no longer considered as giving a right to 
enslave captives. But this triumph of humanity has not 
been universal. The parties to the modern law of nations 
do not propagate their principles by force; and Africa has 
not yet adopted them. Throughout the whole extent of 
that immense continent, so far as we know its history, it 
is still the law of nations that prisoners are slaves. Can 
those who have themselves renounced this law be permitted 
to participate in its effects by purchasing the beings who 
are its victims? 

Whatever might be the answer of a moralist to this 
question, a jurist must search for its legal solution in those 
principles of action which are sanctioned by the usages, 
the national acts, and the general assent of that portion 
of the world of which he considers himself as a part, and to 
whose law the appeal is made. If we resort to this standard 
as the test of international law, the question, as has already 
been observed, is decided in favor of the legality of the 
trade. Both Europe and America embarked in it; and for 
nearly two centuries it was carried on without opposition 
and without censure. A jurist could not say that a practice 
thus supported was illegal, and that those engaged in it 
might be punished, either personally, or by deprivation of 
property. 

In this commerce, thus sanctioned by universal consent, 


156 The Question of Aborigines 


every nation had an equal right to engage. How is this 
right to be lost? Each may renounce it for its own people, 
but how can this renunciation affect others? 

No principle of general law is more universally acknow- 
ledged than the perfect equality of nations. Russia and 
Geneva have equal rights. It results from this equality 
that no one can rightfully impose a rule on another. Each 
legislates for itself, but its legislation can operate on itself 
alone. A right, then, which is vested in all by the consent 
of all, can be divested only by consent; and this trade, in 
which all have participated must remain lawful to those 
who can not be ordered to relinquish it. As no nation can 
prescribe a rule for others, none can make a law of nations; 
and this traffic remains lawful to those whose governments 
have not forbidden it. 

If it is consistent with the law of nations, it can not in 
itself be piracy. It can be made so only by statute; and the 
obligation of the statute can not transcend the legislative 
power of the State which may enact it. 

If it be neither repugnant to the law of nations, nor 
piracy, it is almost superfluous to say in this court that the 
right of bringing in for adjudication in time of peace, even 
where the vessel belongs to a nation which has prohibited 
the trade, can not exist. The courts of no country execute 
the penal laws of another; and the course of the American 
Government on the subject of visitation and search would 
decide any case in which that right had been exercised by 
an American cruiser, on the vessel of a foreign nation, not 
violating our municipal laws, against the captors. 


Great Britain abolished slavery in the British colonies 
in 1833, paying the owners of slaves compensation for 
them. The statute provided that the condition of 
slavery was to cease August I, 1834, but the former 
slaves were to stand in the relation of ‘‘apprentices’’ to 
their former masters, some for four and some for six 
years. The “apprenticeship” proved an unsatisfactory 


Personal Rights of Aborigines 157 


relationship, and the abolition of slavery in the British 
colonies became complete for all former slaves on August 
I, 1838. 

Meantime France established a royal commission for 
the abolition of slavery in the French colonies which 
made an elaborate investigation and report, as a result 
of which a bill for abolition was passed and abolition 
became complete in 1848. 

In 1841 Great Britain, Austria, France, Prussia, and 
Russia entered into a treaty open to all the powers for 
the suppression of the slave trade by granting to each a 
reciprocal limited right of visitation, search, and cap- 
ture of ships engaged in the slave trade, restricted to 
certain identified naval vessels, carefully regulated and 
confined to delimited areas of the ocean. In 1842 the 
United States entered into a similar treaty with Great 
Britain which was supplanted by a treaty of April 7, 
1862, for the more effectual suppression of the slave trade. 

Anti-slavery congresses were held in London in 1840 
and 1843, and in Paris in 1867. 

In the final act of the Berlin African Conference of 
1884-85, a declaration against the slave trade was 
made, as follows: 


Art. 9. Seeing that the slave trade is forbidden according 
to the principles of international law, as recognized by the 
signatory powers, and seeing also that the operations which, 
by sea or land, furnish slaves to this trade are likewise to 
be regarded as forbidden, the powers which do or shall 
exercise sovereign rights in the territories forming the con- 
ventional basin of the Congo declare that those territories 
shall not serve as a market or means of transit for the 
trade in slaves, of whatever race they may be. Each of the 
powers binds itself to employ all the means at its disposal 
for putting an end to this trade and for punishing those who 
engage in it. 


158 The Question of Aborigines 


The declaration that the slave trade is ‘‘forbidden,”’ 
followed by the words “‘according to the principles of 
international law as recognized by the signatory pow- 
ers,’ evidently meant that, so far as the signatory 
powers were concerned, the old principles of inter- 
national law according to which the slave trade was a 
legal operation—or, at least, not an illegal one—had 
been changed as a result of their individual acts pro- 
hibiting the trade to their citizens and their cooperative 
and reciprocal action in concerting and executing 
measures for abolishing the trade. The declaration is 
thus not a statement that the slave trade is contrary to 
the law of nations, but only that so far as the signatory 
powers are concerned, as between themselves, it is so 
held and regarded. 

In August, 1889, an international colonial congress, 
held in Paris in connection with the International Ex- 
position, called attention to the situation in Africa. In 
the previous year Cardinal Lavigerie had held a series 
of meetings in the cities of Europe in which he described 
the nature and extent of the practice of slavery in 
Africa and informed the public of the atrocities con- 
nected with the slave trade which was still being carried 
on. As a result of the efforts of the various parties 
interested, an international anti-slavery conference was 
convened at Brussels in November, 1889, which, on 
July 2, 1890, adopted a convention called a final act of 
the conference, providing further measures for abolish- 
ing African slavery and the African slave trade. 

The States participating were the United States, 
Germany, Austria, Belgium, Denmark, Spain, the In- 
dependent State of the Congo, France, Great Britain, 
Italy, Holland, Persia, Portugal, Russia, Sweden and 
Norway, Turkey, and Zanzibar. The convention was 
open to the adherence of all States. 


Personal Rights of Aborigines 159 


In the preamble the clauses declaring the motives 
and objects of the contracting powers were as follows: 


Being equally actuated by the firm intention of putting 
an end to the crimes and devastations engendered by the 
traffic in African slaves, of efficiently protecting the abo- 
riginal population of Africa, and of securing for that vast 
continent the benefits of peace and civilization. 

Wishing to give fresh sanction to the decisions already 
adopted in the same sense and at different times by the 
powers, to complete the results secured by them, and to 
draw up a body of measures guaranteeing the accomplish- 
ment of the work which is the object of their common 
solicitude, etc. 


The Berlin African conference had declared that ‘‘the 
slave trade is forbidden according to the principles of 
international law as recognized by the signatory pow- 
ers.’ The Brussels act was declared to be intended to 
“give fresh sanction to the decisions already adopted 
in the same sense by the powers.’ It seems a fair 
inference that the Brussels conference adopted the care- 
fully qualified declaration of the Berlin conference. 

The Brussels conference (art. 62 of the final act) 
declared that ‘‘the contracting powers whose institu- 
tions recognize the existence of domestic slavery, and 
whose possessions, in consequence thereof, in or out of 
Africa, serve in spite of the vigilance of the authorities 
as places of destination for African slaves, pledge them- 
selves to prohibit their importation, transit, and de- 
parture, as well as the trade in slaves.”’ 

The effect of this provision was evidently to recog- 
nize ‘‘domestic slavery’’ as an institution which might 
be allowed to continue without violating the law of 
nations, provided the State tolerating the institution 
did not increase the number of its ‘‘domestic slaves” 


160 The Question of Aborigines 


by importation. A fair inference would seem to be 
that the contracting nations held that ‘‘domestic slav- 
ery’ was not contrary to the law of nations, but that 
they intended to place any extension of ‘‘domestic 
slavery” under international cooperative prohibition. 

The convention made a declaration of the measures 
which they regarded as needful to be taken to repress 
the slave trade in the interior of middle Africa, on the 
caravan routes in and leading to middle Africa, and 
on the sea, and the powers bound themselves severally 
to take the necessary national measures, uniformly and 
cooperatively with the others, so as to give their several 
actions a unity of effect. 

The zone of international influence in Africa estab- 
lished by the Berlin African conference was largely 
increased by the Brussels African conference. A plan 
urged by Great Britain for an international commission 
of surveillance to conciliate the powers concerning the 
measures to be taken in cooperation for abolishing the 
slave trade was defeated by the objections of France, 
though receiving the support of the other powers. 
The commission would have consisted of a council of 
administration holding its sessions at Brussels and an 
international bureau located at Brussels. The council 
would have been composed of the diplomatic repre- 
sentatives of the powers accredited to Belgium. The 
bureau would have been the general secretarial office, 
organized and controlled by the council; the whole 
arrangement being similar to that made in 1899 by the 
Convention for the Pacific Settlement of International 
Disputes. The council would have had powers of sur- 
veillance and conciliation. The bureau, under the 
regulations of the council, would have served as a 
depositary of international documents and other in- 
formative material, as the common medium of com- 


Personal Rights of Aborigines 161 


munication, and as the record office. The financial 
support of the commission would have been assured by 
an agreement of the powers regarding the share to be 
contributed by each. Though the final act authorized 
surveillance by the diplomatic body at Brussels, yet, 
as no permanent secretarial office was established and 
no financial support arranged, the execution of the pro- 
visions of the final act was in fact left to the discretion 
of the States concerned. 

(French Yellow Book, Conférence Internationale de 
Bruxelles, 1891. Protocoles et Act Final, pp. 245-278, 
357, 388.) 

The action of the Brussels African conference in 
making arrangements for the abolition of the slave 
trade has received the practically unanimous assent and 
concurrence of all civilized States. The general aboli- 
tion of slavery as a social institution throughout the 
civilized world, and the close commercial relations of 
the nations, have brought about the extinction of the 
slave trade on the sea and in the civilized parts of the 
world. 

From this survey of national and international action 
in modern times it would seem that enslavement of 
aboriginal persons can not yet be said to be, in an un- 
qualified sense, contrary to the law of nations. 
Domestic slavery of such persons, under conditions assur- 
ing their humane treatment, may, it would seem, be 
tolerated by a State, without giving other States a right 
to claim, under the law of nations, that it is violating 
its duty of guardianship. 

Slavery can not exist without some trade in slaves, 
but undoubtedly ‘‘the slave trade,’”’ in the technical 
sense, is now contrary to the universal, or common, 
law of nations. A State which should authorize its 


citizens to engage in it would, it would seem, clearly 
| ig e 


162 The Question of Aborigines 


violate the law of nations. A State which should even 
tolerate traffic in slaves, as a social institution, in any 
place under its sovereignty, would undoubtedly at the 
present time subject itself to international repressive 
or punitive action, unless it could show, in its own 
defence, that it had done, and was doing, everything 
possible to abolish the traffic. 


B. LIMITS SET BY THE LAW OF NATIONS TO THE EXERCISE BY 
A CIVILIZED STATE OF ITS AUTHORITY AS 
GUARDIAN OF ABORIGINES 


The analogy of uncivilized persons to the children 
of civilized persons, or to incompetent civilized persons, 
has in some cases been applied with such literalness in 
colonies of civilized States that the courts having juris- 
diction of offenses committed by aborigines have been 
authorized by law to impose sentence of corporal pun- 
ishment or of forced labor. As forced labor almost of 
necessity implies corporal compulsion in order to avoid 
a complete lack of discipline, the two forms of punish- 
ment seem to amount to the same thing. 

In dealing with aborigines, the common experience 
of civilized States is that they find no inner compulsion 
of the mind urging the aborigines to acquire land and 
personal property as a means of pursuing happiness, 
by exchanging their labor for land and commodities. 
Modern psychology seeks to discover and apply 
methods for creating in the aboriginal mind such an 
inner compulsion; but practical men, leading the harsh 
life of colonists, seek results by more simple methods, 
and demand from the colonizing States the uttermost 
privileges of a parent or guardian as respects the abo- 
rigines—sometimes for their own gain, sometimes with 
amore worthy motive, sometimes as an absolute ne- 


Personal Rights of Aborigines 163 


cessity of self-protection. A few civilized persons living 
among a body of persons who are strong of body and 
will, who may have the minds of children and the morals 
of incompetents or perverts, who may be ignorant of 
private property in land or things, and who may tend 
to commit theft by reason of their habituation to the 
tribal communism, whose ideas of life and death are 
often confused by their religious practices, must per- 
force act promptly, and if need be harshly. As the 
civilized community increases in size and strength it 
arrives at a point where it can study the problem as one 
of psychology. But in new colonies and in colonies 
where the civilized persons are few as compared with 
the aborigines, a civilized State may find that its duty 
to its colonists compels it to allow the local government 
and courts to protect them and discipline the aborigines 
by imposing punishments upon convicted aborigines 
such as a guardian might use in disciplining a child 
who was an incompetent or a pervert. The duty of the 
civilized guardian to preserve itself and its authority 
and to train the minor incompetent committed to its 
charge, may justify the stretching of the parental and 
tutorial power to the utmost. 

Accordingly, in new colonies where the civilized per- 
sons are few in comparison with the aborigines, civilized 
States have tolerated and still tolerate the sentencing of 
aborigines, upon conviction of a crime, to corporal 
punishment and to forced labor; generally, however, 
under restrictions intended to prevent the chastise- 
ment or physical compulsion from working a perma- 
nent bodily injury or a permanent impairment of 
health. 

Thus by the native code of Natal, enacted by the 
governor and council in 1891, it was provided as follows 
(sec. 76) : 


164 The Question of Aborigines 


Kraal heads may inflict corporal punishment upon the 
inmates of their kraals for the purpose of correction and to 
maintain peace and for any other just cause. (Statutes of 
Natal 1845-1899, vol. 2, law 19, 1891.) 


In 1896 the Colonial Legislature enacted an amend- 
ment to the native code providing (secs. 14 and 15) 
thus: 


Every contravention of this act or of the law No. 19, 1891 
[the native code], or of any act amending the same, or of 
any rules and regulations made thereunder, shall be cog- 
nizable and may be tried in the court of the administrator 
of native law of the division in which the offense occurred 
or in which the accused may be found. 

Disobedience or disregard by any native of any duty, 
obligation, or prohibition imposed on him by law No. 19, 
1891, or any of the sections of the schedule thereto, shall, 
be deemed an offense. (Jb., act No. 40, 1896.) 


In 1897 the Colonial Legislature amended the native 
code and the law of 1896 as follows: 


Any person who shall contravene any of the provisions 
of the law No. 19, 1891, or of any act amending the same, 
or of any rule or order made thereunder, for which a special 
penalty has not been provided, shall, upon conviction in 
the court of an administrator of native law, be liable to a 
fine not exceeding 10 pounds sterling, or to be imprisoned 
with or without hard labor for any term not exceeding 6 
months or to a whipping not exceeding 15 lashes. In the 
discretion of the court, imprisonment and whipping may 
be joined and form a part of the same sentence or any one 
of the said classes of punishment may be awarded alone, 
or imprisonment may be awarded with a fine as an alterna- 
tive punishment or by way of default in the payment of any 
fine: Provided, however, That no woman shall be sentenced 
to be whipped. (Jb., act No. 8, 1897.) 


Personal Rights of Aborigines 165 


In the Belgian colony of the Congo the sentence of 
whipping as a penalty upon conviction of certain 
offences by the native tribunals, or by the European 
administrative tribunals acting in their stead, is ap- 
parently authorized by law. The jurisdiction of these 
courts to impose this penalty seems to date from an 
old ordinance which was kept alive by the organic act 
for the government of the Belgian Congo of October 18, 
1908. (Recueil Usuel de la Législation de V Etat Indé- 
pendant du Congo, vol. 6, p. 6; p. 565, sec. 36.) 

A provision of law authorizing the imposition of the 
penalty of whipping occurs in a royal decree of May 2, 
I910, made on the advice and with the approval of 
the Belgian colonial council, regarding the government 
of the administrative districts under the charge of the 
native chiefs. By this law the chief or the European 
administrators may inflict the penalty of flogging as a 
punishment of natives other than the old, the infirm, 
the women, and the children, on conviction of certain 
offences, and the punishment “‘is to be applied in the 
manner provided by the general regulations of the 
colony.” (Recueil Usuel de la Législation de I’ Etat 
Indépendant du Congo, vol. 7, pp. 179-190.) 

An explanatory statement of the colonial council 
regarding the law of I910 is published in connection 
with the law. (See also the publication above cited, 
vol. 3, pp. 202, 204, 289, 356; also vol. 6, p. 733; vol. 7, 
p. 114.) 

In the decree concerning the reorganization of justice 
in the French Congo of March 17, 1903, sec. 14, it is 
provided as follows: 


In the localities situated outside the limits specified in 
the preceding article, crimes committed by the natives to 
the prejudice of other natives shall continue to be judged 


166 The Question of Aborigines 


by the administrators until native tribunals are organized. 
It is, nevertheless, forbidden to them to pronounce sentence 
of corporal chastisement. In cases in which these penalties 
are provided there shall be substituted correctional impris- 
onment or fine. (Journal du Palais, Lots Annotées, 1901- 


1905, p. 678.) 


In Madagascar, by the act of May 9, 1909, enacted 
by the French Government regulating administration 
of the native courts, the sentence of ‘‘forced labor’’ was 
authorized. (Journal du Palats, Lois Annotées, 1906— 
IQIO, p. 989.) 

By the penal code of France (ch. I, secs. 15 and 16) 
it is provided as follows: 


Men condemned to forced labor will be employed upon 
the most severe (pénible) labor; they will wear on their 
feet a metal ball (boulet); or will be fastened together by 
twos, when the labor at which they shall be employed will 
permit. Women and girls condemned to forced labor shall 
be employed only within a house of compulsion (matson de 
force). (Codes et Lois pour la France, l’ Algérie et les Colonies, 
6th ed., Paris, 1912; Code Penal, p. 4.) 


In the Netherlands colony of Surinam, by a law 
enacted in 1863 and in force in 1895, the commissary 
of an administrative district was authorized to impose 
a penalty of from three days to three months of forced 
labor, with or without chains, on persons brought into 
the colony under contract in case of violation of the 
contract by rebellion, drunkenness, laziness, refusal to 
go to the hospital when sick, refusal to obey sanitary 
regulations, or leaving the place of employment without 
a passport. By an ordinance of the Government of 
the Netherlands made in 1895 for Surinam, a failure 
by any immigrant or native laborer to keep a clearing 
around his habitation was made punishable by a fine 


Personal Rights of Aborigines 167 


and by imprisonment, with or without forced labor, 
for from I to 15 days. (La Main-Oeuvre aux Colonies, 
published by the Institut Colonial International, 1895, 
vol. 3, p. 485, note; pp. 771-773.) 

Corporal punishment of aborigines is permitted in 
Rhodesia on conviction of certain offenses, the maxi- 
mum penalty being 15 strokes of the rod (verge). (Les 
Lows et V Administration de la Rhodésie, by Henri Rolin, 
LOLs picl30:) 

In Uganda the district magistrates may sentence abo- 
rigines to the penalty of whipping for a list of specified 
offenses, men over 45 and women being excepted, the 
whipping of men being with a ‘‘kiboko’’ not less than 
half an inch in diameter, and of boys under 16 with a 
“birch rod made of light twigs.’’ (Laws of the Uganda 
Protectorate in force on Dec. 31, 1909, pp. 122-126.) 

For the German colonies of Togoland, Kamerun, and 
southeast Africa, an ordinance was enacted by the 
German Government, on April 22, 1896, permitting the ~ 
local courts to impose a sentence of whipping or flog- 
ging on the conviction of aborigines of certain named 
offenses; women, children, Arabs, and Indians being 
excepted. The kind of whip or rod to be used was 
specified, a maximum of strokes prescribed, and a pro- 
vision was inserted that a physician should be present 
when the punishment should be inflicted, or, if that 
were impossible, a European, and that a record of all 
such punishments should be kept, and a copy trans- 
mitted to the German Government. This ordinance 
was put in effect in German Southwest Africa on 
November 8, 1896, natives of the better class being also 
excepted from its operation. (Deutsche Kolontal Gesets- 
gebung, vol. 2, pp. 215, 294.) 

A general ordinance applicable to all German colonies 
was promulgated on February 27, 1896, by the Imperial 


168 The Question of Aborigines 


Chancellor, forbidding the use of processes to extract 
confessions or declarations in judicial proceedings to 
which aborigines were parties, other than those per- 
missible under the German statute relating to judicial 
procedure in Germany itself. By this ordinance the 
imposition in such judicial proceedings of unusual pen- 
alties was prohibited, and there was a special inhibition 
against verdachtstrafen—penalties imposed by courts 
upon suspicion or without full proof of the guilt of the 
accused. (Deutsche Kolonial Gesetzgebung, vol. 2, pp. 
213)'21)) 

By the German imperial statute of July 25, I900 
(Reichsgesetzblatt, 1900, No. 40), it was enacted that 
the aborigines of the German colonies should be subject 
to the jurisdiction of the courts provided for Europeans 
“only in so far as this is decreed by ordinance of the 
Emperor,” and that ‘‘the aborigines may, by special 
ordinances of the Emperor, be placed on an equality 
with the other parts of the population.” (Deutsche 
Kolonial Gesetzgebung, vol. 5, pp. 132, 143.) 

By a circular letter of January 12, 1900, addressed 
to the colonies by the colonial division of the foreign 
office, concerning the final judgments against aborigi- 
nes, a protest was made against their number and 
severity. It was insisted that the aborigines could be 
brought to know the advantages of the life of labor and 
of civilization by measures of persuasion and education, 
rather than by bodily punishment. It was also stated 
that the opinion in the Reichstag and among the public 
was, that such proceedings were giving a bad reputation 
to the German work of colonization. The governors 
of colonies were urged to see that the laws were obeyed, 
and that only proper bodily punishment was inflicted. 
(Deutsche Kolonial Gesetzgebung, vol. 5, p. 15. See also 
Vol! 6) p72289) 


Personal Rights of Aborigines 169 


The German colonial office, on July 12, 1907, through 
Dr. Dernburg as colonial secretary, sent a letter to all 
the governors of colonies saying that public opinion 
in Germany was stirred up by the cruel use of corporal 
punishment in the colonies, and asking for opinions how 
to establish a better system, in which bodily punish- 
ment should be reserved for a few kinds of specially 
heinous offences. (Jb., vol. 11, p. 323.) 

The same request was repeated in 1909, and the gov- 
ernors were urged to see that the purpose of the Govern- 
ment in restricting corporal punishment to certain 
heinous offences was carried out. (J0., vol. 13,) p. 59.) 

Under Japanese administration in Formosa,} corporal 
chastisement as a penalty for violation of police regula- 
tions is authorized, as applied to Formosan and Chinese 
men over 16 and under 60 years of age, who have no 
residence in the island and are without means of sub- 
sistence. 

(Japanese Rule in Formosa, by Yosaburo Takikosh1, 
tr. by George Braithwaite, 1907, p. 194.) 

M. Henri Rolin, in his book on The Law of Uganda 
(Le Droit de l’ Uganda), published in 1910, speaking of 
corporal punishment of aborigines of the more primitive 
type as a part of the system of administration adopted 
by civilized States as respects their tropical colonies, 


says (pp. 16-18): 


The colonies of tropical Africa are the political creations 
of modern European States—that is to say, of some of the 
most highly civilized States of our time—in one of the most 
backward regions of the globe. It is therefore not to be 
wondered at that these colonies, and especially their legis- 
lation, call to mind in some respects certain epochs of his- 
tory and certain stages of the evolution of law which we 
are wont to speak of as ‘‘ primitive’; nor that, on the other 
hand, these colonies and their legislation reflect some of 


170 The Question of Aborigines 


the most modern and progressive tendencies. Such is, in 
fact, the character of these recent acquisitions made by 
Europe. They are adaptations of civilization to barbarous 
regions. 

In the colonies of tropical Africa, as at certain ‘“‘primitive”’ 
epochs of political and juridical evolution, the organiza- 
tion of the public powers tends to take the form of abso- 
lutism rather than of democracy. The military element 
plays a preponderant part, which, however, diminishes 
rapidly in importance after a few years. The accumulation 
of functions in one or a few persons is frequent. The 
maintenance of the aboriginal political organs gives rise to 
a superposition of authorities which calls to mind more or 
less the feudal system. From the point of view of the finan- 
ces, the revenue from the public lands and trade monopolies, 
as well as the revenue from imposts, have an importance 
relatively much greater than in Europe at the present time. 
Imposts are paid often in the produce of the soil or in labor. 
The tenure of the land is in large part collective. The 
system of liberty of contract is less developed, especially 
as respects manual labor, due to the persistence of slavery 
and the evils which ramify from it. On the other hand, 
the rules of penal law are numerous, and corporal punish- 
ment as a penalty for crime, as well as collective punishment 
of aboriginal communities, are applied. There are in this 
situation certain undeniable analogies between the systems 
of law applied in the colonies of tropical Africa and the 
institutions of western Europe in the first centuries of the 
Middle Ages. 

On the other hand, the colonial powers, yielding to the 
assimilative tendency which colonizing States are never able 
completely to resist, have introduced into the law of the 
middle African territories certain ideas essentially modern— 
that of commercial freedom guaranteed by the Berlin 
African act of 1885; that of the freedom of labor, opposed 
to the institution of slavery and the corvée; that of religious 
freedom guaranteed by the Berlin African act; and that of 
the duty of assuring the moral and material well-being of 


Personal Rights of Aborigines 171 


the aborigines, guaranteed by the same act. There exists 
also a tendency to put into effect the principle of the sepa- 
ration of powers, and that of the individuality of the penalty 
of crime; to proscribe corporal chastisements of a severe 
character; and to favor the development of the institu- 
tion of private property. The enormous extension of the 
part taken by the colonizing State in the internal man- 
agement of these tropical colonies is also a very modern 
feature. 


The question underlying the rightfulness of corporal 
chastisement of aborigines as a penalty inflicted by 
courts for commission of offences by them, evidently 
is, how far a civilized State may go in restricting the 
fundamental rights of uncivilized persons to life and 
liberty by punishing them as being in a sense adult 
children. All needful restrictions are, it seems, legal; 
though a State cannot by law require cruel and inhuman 
punishment to be imposed, or persistently tolerate a 
cruel and inhuman administration of its law. On the 
general subject of the necessary limitation of the civil, 
as well as political, rights of aborigines, due to the 
undeveloped and undisciplined character of their minds, 
the Supreme Court of the United States has fully 
expressed itself. (Ex parte Crow Dog, 109 U. S., 556, 
decided in 1883.) In that case the facts were that 
Congress had, by an act reciting an agreement with a 
tribe of Indians, ratified an agreement with them stipu- 
lating the boundaries of their reservation, and provid- 
ing for a degree of self-government subject to certain 
restrictions. One of the provisions was that ‘‘Congress 
shall, by appropriate legislation, secure to them an 
orderly government; they shall be subject to the laws 
of the United States, and each individual shall be pro- 
tected in his rights of property, person, and life.’’ Of 
this provision the court said: 


172 ‘The Question of Aborigines 


The pledge to secure to these people, with whom the 
United States were contracting as a distinct political body, an 
orderly government by appropriate legislation, necessarily 
implies, having regard to all the circumstances attending 
the transaction, that among the arts of civilized life, which 
it was the very purpose of all these arrangements to intro- 
duce and naturalize among them, was the highest and best 
of all, that of self-government, the regulation by themselves 
of their own domestic affairs, the maintenance of order 
and peace among their own members by the administration 
of their own laws and customs. They were nevertheless to 
be subject to the laws of the United States, not in the sense 
of citizens, but, as they had always been, as wards subject 
to a guardian; not as individuals constituted members of 
the political community of the United States, with a voice 
in the selection of representatives and the framing of the 
laws, but as a dependent community who were in a state 
of pupilage, advancing from the condition of a savage 
tribe to that of a people who, through the discipline of 
labor and by education, it was hoped might become a self- 
supporting and self-governing society. 


It is thus evident that civilized States are inclined 
to allow to themselves and to each other a wide dis- 
cretion in determining what restrictions upon the liberty 
of their aboriginal wards are needful in any given situ- 
ation. Nevertheless the general appreciation of the fact 
that civilization advances only by correction of the 
mind is having its effect. All civilized States have 
placed slavery in all its forms—political, social, and 
economic—more or less under their ban. The attitude 
of those which permit corporal punishment is apolo- 
getic, and justification is sought in some exceptional 
need of coercion in the particular case. The develop- 
ment of the law of nationsin this respect would seem to be 
in the direction of the recognition of the tutorial duty 
of civilized States towards the aborigines under their 


Personal Rights of Aborigines 173 


sovereignty as imperative and unalienable,—as inevit- 
ably involved in the personal relationship of guardian- 
ship,—and the restriction of the personal liberty of 
aborigines only to the extent needful to enable the 
State to effect the necessary mental correction. 


CHAPTER VIII 


THE DUTIES OF CIVILIZED STATES AS GUARDIANS OF 
ABORIGINES 


N the declarations of international conferences deal- 
ing with the relations between civilized States and 
aborigines under their sovereignty, the duties in- 

cident to this guardianship have not been definitely 
recognized as being of a tutorial character. The Berlin 
African conference indeed declared the obligation of 
the signatory powers ‘‘to watch over the preservation 
of the native tribes, and to care for the conditions of 
their moral and material well-being, and to help in 
abolishing slavery, and especially the slave trade.’’ As 
respects the positive duty of the State to undertake 
directly the education and training of the aborigines 
in the arts and sciences of civilization and in the politi- 
cal principles on which all civilized society is based, 
the declaration is indefinite. It seems to have been 
contemplated that the education of the aborigines would 
be effected principally by religious and charitable 
associations of a private character. The provision on 
this subject is as follows: 


[The signatory powers] shall, without distinction of 
creed or nation, protect and favor all religious, scientific, 
or charitable institutions and enterprises created and or- 
ganized for the above ends, or designed to instruct the 
natives, and to bring home to them the blessings of civili- 
zation. Christian missionaries, scientists, and explorers 


174 


Duties of States as Guardians 175 


with their escorts, property, and collections shall likewise 
receive special protection. 

Freedom of conscience and religious toleration are ex- 
pressly guaranteed to the natives as well as subjects and 
foreigners. The free and public exercise of all forms of 
divine worship and the right to build edifices for religious 
purposes and to organize religious missions belonging to 
all creeds shall not be limited or fettered in any way 
whatsoever. 


The Brussels African conference declared that those 
in charge of the fortified stations to be established in 
Africa should have the following “subsidiary duties’”’ 
GArt. 11): 


To initiate [the native populations] in agricultural 
labor and in the industrial arts so as to increase their wel- 
fare; to raise them to civilization and bring about the 
extinction of barbarous customs, such as cannibalism and 
human sacrifices. 


The interest of all civilized States in colonizing enter- 
prises was stimulated by the entry of the United States 
into the civilized world as a colonizing power. The 
general sentiment of the American people, voiced by 
its statesmen, was that domination of distant communi- 
ties by a Republic was permissible when needful and 
to the extent needful, but only provided the State 
recognized and fulfilled the positive and imperative 
duty of helping these dominated communities to help 
themselves by teaching and training them for civiliza- 
tion, as the wards and pupils of the nation and of the 
society of nations. Democracy and republicanism were 
not to be promulgated, the American people held, by 
destroying those who. were ignorant of these principles 
Or who disbelieved in them, but by the positive, helpful, 
propagandist work of republics in converting to these 


176 The Question of Aborigines 


principles the nondemocratic and nonrepublican part of 
the world with which they were politically connected. 

It is acknowledged by European writers that the 
year 1898 marks the beginning of a new epoch in the 
art and science of colonization, in which civilized States 
have recognized more and more definitely that guardian- 
ship of aboriginal tribes implies not merely protection, 
not merely a benevolence toward private missionary, 
charitable, and educational effort, but a positive duty 
of direct legislative, executive, and judicial domination 
of aborigines as minor wards of the nation and of 
equally direct legislative, executive, and judicial tutor- 
ship of them for civilization, so that they may become 
in the shortest possible time civil and political adults 
participating on an equality in their own government 
under democratic and republican institutions. 

The most humane and advanced European colonial 
administrators and students of colonial science realized 
this development of public sentiment, and in order to 
lay a basis for the future establishment of these humane 
principles in law of nations, proposed the assembling 
of an international conference in Paris in 1900 in con- 
nection with the International Exposition, for the dis- 
cussion of the duties of civilized States to aboriginal 
peoples under their sovereignty. The European Gov- 
ernments were agreeable to the plan, but evidently on 
account of the delicacy of the questions to be discussed 
the conference was given a wholly scientific character 
and was called an “international congress of colonial 
sociology.’’ It was attended by delegates from the 
different nations, who were experts in colonial science 
or in colonial administration. It was under the patron- 
age and direction of the French Government. Its 
conclusions were in the form of statements of opinion con- 
cerning what the principles of the law of nations ought 


Duties of States as Guardians 177 


to be, without attempting to determine what principles 
were actually accepted and applied, or to pass any 
judgment on existing principles or on the action of any 
nation. The action of the congress, therefore, is valu- 
able only as suggestive of the development of the law of 
nations in the future and throws no light upon the ac- 
tual principles recognized and applied. Considering the 
character of this congress, however, it seems desirable 
to present its program and resolutions, as shown by 
the printed proceedings. 

M. Leseur, the secretary general of the congress, in 
announcing the program to be followed by the congress, 
said (Proceedings, pp. 4-6, 12): 


The object of the congress is the study of the moral and 
social questions growing out of colonization. . . It is 
necessary not to forget that the congress . . . is an inter- 
national congress; that it has for its purpose the bringing 
about of an exchange of views which shall, as it were, serve 
as a body of directions destined to guide, not one particular 
power, but rather all the powers which have seen fit to 
give to their development the form of colonial expansion. 
Certainly if there be one problem which can be said to 
be essentially international, it is that of the condition of 
aboriginal peoples. It is such not only by the circumstances 
under which it presents itself, but also by certain manifes- 
tations to which it has given occasion. It will suffice that 
I recall to your attention those somewhat peculiar state- 
ments of a document international in its nature, the Berlin 
African Act of 1885; the avowal of the preamble that the 
powers have concerned themselves in considering ‘the 
means of increasing the moral and material well-being of 
the aboriginal peoples’; and the engagement assumed by 
the powers in Article VI to watch over ‘“‘the conservation 
of the aboriginal peoples and the amelioration of their 
moral and material conditions of existence.’’ These are 
significant evidences, and in spite of the contradiction 


12 


178 The Question of Aborigines 


which certain established facts give to these avowals, they 
have nevertheless, from the point of view of the moral 
history of colonization, a considerable value. They amount 
to a condemnation of that policy of destruction and en- 
slavement which for centuries has been the policy fol- 
lowed by the colonizing peoples as regards the natives of 
their colonies. They imply the avowal of the opinion 
that, though of a civilization more or less retarded, these 
aboriginal peoples are not on this account outside the 
domain of law, and that as for the colonizing powers, 
it is only by a just sentiment toward the inferior races 
and an exact observation of duties toward them that 
they can justify to themselves those facts of brutal con- 
quest which are almost always the beginnings of colonial 
enterprises. 

The general subject of the conference will be: The duties 
which colonial expansion imposes upon the colonizing 
powers, in colonies properly so called, as regards aboriginal 
peoples. 

The program [will be] as follows: 

I. The political condition of aborigines. To what extent 
and under what conditions is it desirable to maintain the 
aboriginal administrative organisms? How and by what 
means may an aboriginal population be put in a position 
to defend its rights and to secure redress of its grievances 
at the hands of the local authorities? 

II. The juridical condition of aborigines. The conditions 
of aboriginal population from the point of view of civil and 
criminal legislation and the distribution of justice. Respect 
for the property of the aborigines and the means of harmoniz- 
ing this respect with the needs of colonization. 

III. The moral condition of aborigines. Means to which 
it is proper to have recourse to raise their intellectual and 
moral standards. 

IV. The material condition of aborigines. Measures 
proper to be taken to assure the conservation of the race, 
to prevent its physical degeneration, and to ameliorate its 
conditions of existence. 


Duties of States as Guardians 179 


The congress adopted resolutions upon all these 
points, which were as follows (Proceedings, pp. 442- 


452): 


The political and juridical condition of aborigines. 

I. To what extent and under what conditions is it desir- 
able to maintain the aboriginal administrative organisms? 

Opinions adopted by the congress: 

The congress— 

Considering that the well-being of aborigines, their 
physical, intellectual, and moral development ought to be 
the supreme end of all colonial policy; 

Considering that the evolution of aboriginal societies can 
of necessity take place only gradually, being itself only the 
consequence of economic transformations which determine 
the degree of civilization of a people; 

Convinced that the only rational method is that which 
consists in adapting, as much as possible, the colonial 
régime to the existing institutions, laws, and customs of 
the aboriginal races, ameliorating them so as to do away 
with their injustices and adapting them to new needs when 
such needs make themselves felt; 

Announces as its opinion— 

That colonial policy should tend, in principle, toward 
the maintenance of the aboriginal administrative organisms. 

II. How and by what means may the aboriginal popula- 
tion be put in a position to defend its rights and to secure 
redress of its grievances at the hands of the local authorities? 

Opinion adopted by the congress: 

The congress— 

Considering that good government of aborigines is im- 
possible unless they have the means of making known their 
needs to the local authorities; 

Considering, on the other hand, that it is important to 
the security of the colonies, and therefore to their pros- 
perity, that the aboriginal populations should find in the 
peaceful operation of regular institutions the means of 
making known their grievances, whether arising from the 


180 The Question of Aborigines 


local administrative measures or from legislative measures 
of the metropole by which they are affected; 

Is of the opinion— 

That the colonizing powers ought to give attention to the 
matter of providing their aboriginal subjects with the means 
of defending their rights and of securing redress of their 
grievances at the hands of the local authorities; 

Among these means, which ought to be appropriate to 
the degree of civilization of the aboriginal population, the 
congress recommends the free exercise of the right of peti- 
tion; this right being subjected to the minimum of formali- 
ties and expenses, in order that the ignorant and the very 
poor may be able to profit by it without difficulty. 

While recognizing that the grant of representative insti- 
tutions may be considered as the surest means of putting 
aboriginal populations in a position to defend their rights, 
and to obtain redress of their grievances at the hands of 
the local authorities, the congress considers that the régime 
of representative institutions is one which presupposes the 
concurrence of moral, intellectual, and political conditions 
which can be conceived of as realizable by aboriginal peoples 
only in a future more or less distant; and that, in view of 
the actual condition of the greater part of the aboriginal 
populations, the solution is to be sought according to cir- 
cumstances, either in admitting the chief men of the abo- 
rigines as members adjunct of the councils connected with 
the local governments (the executive council, the council 
of administration, the privy council), or, preferably in the 
creation of aboriginal assemblies invested with purely con- 
sultative powers. The composition and powers of these 
assemblies should vary with the local conditions. It is, 
however, desirable, if the local circumstances permit, that 
these assemblies should be composed, in part at least, of 
elected members, the suffrage being restricted or of several 
grades. 

In the colonies where the local conditions do not lend 
themselves to the establishment of such assemblies, it is to 
be desired that a person delegated by the governor should be 


Duties of States as Guardians 181 


constituted the protector of the aborigines, and should 

be charged with the duty of receiving their complaints. 
III. Condition of aborigines from the point of view of 

civil and criminal legislation and the distribution of justice. 
Opinions adopted by the congress: 


A. CIVIL LAW 


1. Inasmuch as a knowledge of the juridical institutions 
of the aborigines is a matter of very considerable interest, 
both from the political and the scientific standpoint, it is 
to be desired that the governments should initiate and 
encourage the study of these institutions by competent 
men. 

2. As respects the organization of their family life, and 
the use of their property, it is desirable to leave to the abo- 
rigines the benefit of their own customs, so far as these 
customs are not incompatible with the respect due to human 
life and liberty. 

3. It is desirable to maintain the aboriginal tribunals 
for the purpose of exercising jurisdiction over the civil 
affairs between aborigines; a surveillance, more or less strict 
according to circumstances, being exercised over those tri- 
bunals and a right of appeal being given before a tribunal 
of metropolitan origin. 

Whenever it becomes necessary to organize new tribunals 
it is essential to give representation to the aboriginal ele- 
_ ment of the population on these tribunals. 

4. It is not desirable to encourage the aborigines to solicit 
individually the benefit of European juridical institutions. 

5. It is desirable to codify the civil institutions of the 
aborigines, but only on the condition of attributing to 
these codes, at least provisionally, only a value purely doc- 
trinal. These codes ought to translate the customary law 
of the aborigines without altering it. 

6. By way of exception to the above, as respects the law 
of contracts and the commercial law, it is, on the contrary, 
desirable to enact for the aborigines a code resembling, as 


182 The Question of Aborigines 


nearly as possible, the European legislation on this sub- 
ject with some reservations of which the principal are as 
follows: 

(a) Thecontract of labor ought to be made the object 
of a special and detailed regulation guaranteeing 
the liberty of the aboriginal workers and assuring 
them equitable treatment. 

(b) The system of evidence ought to be placed in 
harmony with the social status and the degree of 
instruction of the aboriginal population. 

(c) It may be necessary to enact particular rules to 
assure the execution of obligations undertaken by 
the aborigines, and especially to authorize, as 
regards them, execution by bodily constraint. 

7. Cases arising between individuals of different races 
ought to be adjudicated, not by European tribunals, but 
by mixed tribunals in which the European element should 
in all cases be represented. 

8. When the authority of the Europeans has been once 
established, it is desirable to commence to constitute the 
civil status of the aborigines by compelling them to declare 
the births and deaths which occur among them; it being 
understood that this declaration shall not modify their 
personal status. 


B. CRIMINAL LAW 


9. The enactment of a penal code for the use of the abo- 
rigines is a duty which exists from the instant that the colo- 
ny is founded. This code ought to be translated as soon as 
possible into the language of the aborigines. 

10. This penal code for the aborigines ought not to be 
merely a copy, more or less modified, of the European 
penal code, though it ought to be based upon the same 
juridical principles. It is necessary to define anew each 
infraction of the law, and to determine its relative gravity. 

An act forbidden to Europeans may be permitted to 
aborigines, and vice versa. The gravity of an infraction of 


Duties of States as Guardians 183 


the law may vary according to the race of the author or of 
that of the victim. 

11. The duty of imposing penalties upon aborigines in 
criminal cases ought to be confided to the authorities of 
the colonizing power, even when the exercise of the right 
of jurisdiction is delegated to the aboriginal authorities. 

12. It is desirable to establish, in order to impose penal- 
ties upon aborigines in criminal cases, a judiciary authority 
distinct from the administrative authority. 

13. It is permissible, however, to confer upon an admin- 
istrative officer jurisdiction to repress minor crimes con- 
formably to the law. 

14. It is desirable that a code of criminal procedure 
should be made for the use of the aborigines. While giving 
to the accused the necessary guaranties, the procedure 
ought to be established with sufficient conditions to insure 
rapid action, so that the punishment may follow as quickly 
as possible upon the commission of the crime. The prac- 
tice of subjecting accused persons to incessant questioning 
and torture [la question et les épreuves| ought to be and to 
remain rigorously prohibited. 

15. A prison régime different from that applied to Euro- 
peans ought to be established for the use of aborigines. 


THE MATERIAL CONDITION OF THE ABORIGINES 


I. Measures necessary to assure the conservation of the 
race, to prevent its physical degeneration, and to ameliorate 
its conditions of existence. 

Opinions adopted by the congress: 

1. It being evident that the prosperity of tropical colonies 
is dependent upon the maintenance and development of the 
aboriginal population; 

2. The congress expresses the opinion that the measures 
taken in the acts of Brussels of 1890 and 1899 to restrain 
the traffic in spirituous liquors within a zone of the African 
Continent, ought to be generalized, and that it is desirable 
that a diplomatic accord should be made for the purpose of 


184 The Question of Aborigines 


extending these provisions to all colonies where there is an 
aboriginal population. 

2. As respects those colonies which have local representa- 
tive powers, the congress expresses the hope that the metro- 
politan governments will bring to the attention of the local 
governments the dangers arising from the consumption of 
alcohol, and will exercise upon them a moral pressure so as 
to induce them to take all possible measures having for 
their object the reduction of the local consumption of 
alcohol. 

3. It is desirable that measures should be taken to pre- 
vent or restrict the consumption of opium. 

4. It is desirable that the colonizing powers, each as 
regards that which concerns itself and in the respective 
spheres of their interests, should take measures to supervise 
and train all aboriginal labor, and should regulate it in 
such a way that the work done shall not be in excess of the 
physical forces of the laborers, whether the labor be on 
public works or private enterprises. 

5. Itis desirable that the colonizing powers take measures 
with a view to preventing the dangers which result from 
penury or famine among the aboriginal populations, and 
which are for them, periodically, a cause of epidemic dis- 
eases and abnormal mortality. 

6. It is desirable that the powers, each in its own sphere 
and to the extent it may deem possible, should organize 
the care of abandoned infants and children. It is to be 
hoped that in the accomplishment of this work the coloniz- 
ing powers will receive and even invite private assistance. 

7. The organization of the public hygiene being one of 
the most efficacious means to maintain the aboriginal popu- 
lations and preserve them from degeneration— 

Considering, on the other hand, that the Europeans have 
the effective control, in moral and material matters, of the 
aboriginal peoples who are subjected to their authority, 
and that there is thus imposed upon all the colonizing powers 
the obligation of giving to the aborigines all the security 
which it is in their power to procure for them; 


Duties of States as Guardians 185 


The congress expresses the opinion that the measures of 
public hygiene ought not to be limited to the European 
personnel only. It recommends as particularly urgent the 
adoption of the following measures: 

(a) In the localities where leprosy exists, there should 


(0) 


be created asylums, to which should be admitted 
as patients all lepers who, by reason of the char- 
acteristic condition of the lesions, are likely to be 
a source of contagion for the people of the neigh- 
borhood. These asylums should be distant from 
the inhabited centers. They should be estab- 
lished on rural lands of large extent, so as to 
permit the lepers to enjoy a certain liberty, under 
the usual restrictions of non-communication with 
the healthy localities. The hygienic care suitable 
to their condition and the necessary attention 
should be furnished by the administration. 

The competent authorities ought to give advice 
of the departure of each leper leaving the colony 
to the Government of the country of his desti- 
nation. 

It is necessary to instruct the aboriginal popula- 
tions regarding the grave dangers which syphilis, 
under all its forms, presents, for the individual, 
the family, the community, and the race. 

It is desirable to institute in the localities where 
they do not exist and to multiply in those in 
which they exist, dispensaries, hospitals, and con- 
sultation rooms where the malady may receive 
gratuitous treatment; hospital treatment not 
being made obligatory. 

In those colonies where supervised prostitution 
shall be introduced it will be desirable that the 
best arrangements and regulations in use in the 
metropole should be applied. 


(c) Against smallpox it is necessary to organize in tropi- 


cal colonies a service of public vaccination. 


(d) It is desirable that the colonial governments 


186 The Question of Aborigines 


should give their attention to the creation of 
aboriginal schools of medicine and institutions 
for the instruction of a sufficient number of 
aboriginal women as midwives. 
(e) The streets and ways of the European settle- 
ments, and of the aboriginal villages, tatas, camps, 
or other cantonments should be the object of a 
sanitary police. 
Against the persistent diseases of animals which 
render difficult the conditions of existence and 
labor of the aborigines, by depriving them of their 
beasts of labor, it is necessary to establish a local 
veterinary service, to eradicate the diseases of 
animals and prevent their recurrence. 

(g) The service of colonial hygiene, in so far as it is 
a matter of public administration, should be 
directed by officials having technical training and 
knowledge. Each colony ought to have at its 
capital a council of hygiene. 

(h) It is desirable that the colonizing powers should 
publish each year a schedule or general report 
indicating, from the social and demographic 
point of view, the progress made as respects 
public hygiene (the birth, sickness, and death 
statistics) and as respects private or public 
assistance for the benefit of the aborigines. 

It is also desirable that the governments of colo- 
nies should take care to advise, as promptly as 
possible, the governments of neighboring colonies 
and that of the metropole in regard to matters 
occurring which may affect the public health. 
II. Is it not necessary, in the interest of the material 
condition of the aborigines, to suppress that form of forced 
labor called the corvée? 
Opinion adopted by the congress: 
The congress— 
Considering that the use of the corvée produces nothing 
but inconvenience; that it is a cause of diminution of the 


nN 


(f 


Duties of States as Guardians 187 


aboriginal population and at the same time a danger to the 
public tranquility by reason of the discontent which it excites; 

Considering, on the other hand, that it is demonstrated 
by experience that the measures taken to prevent the abuses 
which arise from the use of the corvée are always ineffective 
and illusory; 

Considering, finally, that it is only free and remunerated 
labor which gives beneficial results, and that there is no 
colony in which the necessary labor can not be obtained, 
provided the remuneration offered is sufficient; 

Announces the opinion— 

That the colonizing powers should suppress the corvée, 
and that they should force themselves to replace it by free 
and remunerated labor. 

III. How to develop among the aborigines the habits of 
foresight and saving. 

The congress— 

Considering that it is important to develop among the 
aboriginal populations habits of foresight and saving, and 
that, as soon as these populations shall have adopted these 
habits, many of the difficulties arising out of colonization 
will solve themselves; 

Considering, on the other hand, that the excellent results 
shown in Algeria by the aboriginal savings, mutual-aid, and 
codperative societies organized under the law of April 14, 
1893, have demonstrated the advantages which may be 
derived from these institutions; that not only are they an 
excellent agency of economic education for the aborigines, 
but that they are susceptible of furnishing to the metropole 
the means for remedying the dangers which usury offers to 
the holding of property by the aborigines, and of preventing, 
or at least mitigating, the consequences which flow from 
extreme poverty as respects the conservation of aboriginal 
races; 

Is of the opinion that wherever the local conditions per- 
mit, the colonizing powers ought to give their attention to 
bringing about the formation of savings, mutual-aid, and 
codperative societies among the aborigines. 


188 The Question of Aborigines 


THE MORAL CONDITION OF THE ABORIGINES 


Means to which it is proper to have recourse in order to 
raise the intellectual and moral standards of the aborigines. 

Opinions adopted by the congress: 

1. The development of the producing forces, which is 
the basis upon which human life evolves itself under all its 
manifestations, being a powerful factor in civilization and 
one of the best means for raising the moral standards of 
aboriginal populations; 

The congress announces the opinion— 

That colonial policy should tend to the continual im- 
provement of the means of existence of the aborigines and 
the organization of the labor performed by them. 

2. The congress— . 

Considering that the colonizing powers, by extending 
their domination over countries inhabited by populations of 
a civilization more or less retarded, have contracted the 
duty not only of ameliorating their material conditions of 
existence, but also of raising their intellectual and moral 
standards; 

Is of the opinion— 

That the colonizing powers ought to exercise a very par- 
ticular solicitude over the instruction of the aborigines. 
They ought not to forget that this instruction ought to be 
of a character appropriate to their circumstances; that is 
to say, that the methods used and the courses given ought 
to be adapted to the mental conditions of the aborigines to 
whom they are applied. The instruction ought, more- 
over, to be essentially educative, that is to say, it ought 
not to have for its object merely to give a certain amount of 
professional knowledge to the aborigines, but it ought to 
have, as an object of its constant attention, their moral 
improvement. 

3. The congress— 

Considering that the colonizing peoples have a duty of 
education to perform as regards the aboriginal populations, 
and that the prosperity of the colonies is dependent upon 


Duties of States as Guardians 189 


the codperation and the progressive culture of these 
races; 

Announces the opinion— 

That, by means of schools and other appropriate insti- 
tutions, by means of encouragement given to free private 
establishments, and by means of an unhampered protection 
assured to all civilizing enterprises, this end ought to be 
pursued without intermission, particular care being taken 
to select out of the various means of action those which 
are adapted to the particular country, the particular race, 
the particular time, and the particular circumstances. 

4. The congress— 

As regards the moral and intellectual improvement of 
the women of the Mohammedan and Hindoo peoples; 

Announces the opinion— 

That the governments should encourage the creation or 
the development of professional schools of aboriginal indus- 
tries appropriate to the condition and the traditions of 
women, in which there shall be given a moral education, 
and instruction in the language of the colonizing power, as 
incidental to instruction of a technical kind by means of 
which these women may be enabled to improve their 
material condition. 


Since 1900 the nations generally have recognized 
this duty of tutorship. The leading colonizing States 
have given increasing attention to education, to training 
in civilized arts, and to sanitation. The International 
Colonial Institute of Brussels has published voluminous 
surveys of the condition of education in the colonies 
of civilized States and collections of acts and documents 
concerning land and labor legislation. Its sessions, as 
well as those of the various national and international 
colonial congresses held in the capitals of Europe, have 
been largely devoted to problems of the tutorship of 
native races. The publications of the various scientific 
societies in the European States devoted to the study 


190 ‘The Question of Aborigines 


of colonization, disclose that this tutorship has been 
extensively practiced by the European States, and that 
the experiments have been almost uniformly successful. 
The United States has, in the Philippines particularly, 
fulfilled this duty of tutorship with a conscientiousness 
and zeal entitling it to take the lead in any future 
development of the law of nations in this respect. 


CHAPTER IX 


THE LEGAL EFFECT OF AGREEMENTS BETWEEN CIVILIZED 
STATES OR THEIR CITIZENS AND ABORIGINAL TRIBES 


AKING it to be established as a fundamental 
principle of the law of nations that aboriginal 
tribes are the wards of civilized States, the 

question of the validity of agreements made between 
civilized States and aboriginal tribes is to be determined 
by the principles which would apply in the case of an 
agreement between guardian and ward. Such agree- 
ments are necessarily of a peculiar character. The 
guardian can not divest himself of his duty to protect 
and train his ward. On the other hand, if for any 
reason he finds it necessary or expedient to enter into 
an agreement with his ward, he can not honorably 
repudiate it and resume his power of guardianship and 
tutorship without making some arrangement with his 
ward which is just under all the circumstances. 

Inasmuch as a State usually finds it necessary to 
support and champion its citizens and corporations in 
case they enter into agreements with aboriginal tribes, 
the principles applicable to such agreements are sub- 
stantially the same as those applicable to agreements 
between civilized States and such tribes. 

In the report of the Commmittee of the United States 
House of Representatives on Indian Affairs of 1830, 
above quoted, it is said: 


In the primitive condition of these tribes, they would 
have been independent in fact, if they had inhabited within 


IQI 


192 The Question of Aborigines 


the jurisdiction of the most powerful European State; and 
it would have been necessary to the safety and order of the 
established society either to exterminate them or to find 
out some other mode of making their existence compatible 
with those objects. 

To govern turbulent and warlike bands of Indians by 
regular law, administered in the ordinary form, was impos- 
sible. To impose such restraints as were in the power of 
the Government to execute was all that a practical people 
would attempt; and therefore what ordinary legislation and 
the regular administration of justice could not effect, the 
colonists sought to supply by gratuities, and appealing to 
whatever sense of the obligation of promises the habits of 
the Indians permitted, for the observance of such rules 
of intercourse between them and the white population, as 
were agreed upon in friendly conference and treaties. These 
treaties were, therefore, but amode of government, and a sub- 
stitute for ordinary legislation, which were from time to time 
dispensed with, in regard to those tribes which continued in 
any of the colonies or States until they had become inclosed 
by the white population. This transition from the practice 
of conciliating by treaty to that of controlling by regular 
laws has taken place, it is believed, with all the tribes in the 
old States, except Georgia; and in some of the new, as in 
Maine. It is true, that the legislation in most of the States 
has been simple and intended rather for the protection than 
the restraint of the Indians. The tribes thus brought within 
the ordinary jurisdiction of the States are indulged in the 
enjoyment of their ancient usages so far as such a license 
is found compatible with the peace and good order of society, 
and whatever restraints have been imposed for any purpose 
seem, in general, to have been adapted to their condition 
with a humane discrimination. . 

More than its due effect is often given to the circumstance 
of the actual independence which all the Indian tribes once 
enjoyed, and which many yet enjoy, within the territorial 
jurisdiction of the United States, in forming an opinion of 
the right of the appropriate sovereignty, where it finds it 


Agreements between Tribesand States 193 


expedient, to bring them under the dominion of its laws. 
The distinction is not always adverted to between privileges 
and immunities indulged, and such as are enjoyed as matter 
of right, between such as are acknowledged by law and 
those which are merely tolerated, either because the State 
having the right can not or does not care to interfere. 

A State is not obliged to exercise all its rights of 
sovereignty at once, nor is it a new case, or one of uncommon 
occurrence, that a State finds itself deficient in physical 
resources necessary to the exercise of its rights of sovereign- 
ty. Humanity has often pleaded successfully against the 
exercise of rights which belonged to a State as essential 
attributes of sovereignty. . 

If the States which have exercised jurisdiction over the 
Indians had done so only upon a surrender of the separate 
political rights as a people, as such an act would imply one 
of the most affecting and solemn ceremonies which the 
intercourse between communities and nations can give rise 
to, the forms pursued upon such imposing occasions would 
have found a place among the historical records of the 
country. To attempt to give any such solemn effect to the 
submission of the sachem of an Indian village, who had not 
the power to resist,or to the more formal promises of obedience 
made by powerful tribes, and which were regarded in general 
as meaning nothing more than a promise to live in peace with 
the white population, seems to be supported by too little 
reason to deserve a serious notice. These stipulations were 
as often disregarded as any others into which the Indians 
entered; and it is not pretended that formal surrender of 
political rights preceded the exercise of jurisdiction in all 
cases. The policy of the country has always been to avoid 
provoking the Indians, and even if it could be shown that 
the exercise of jurisdiction in any case was avoided because 
the Indians objected, still the right could not be affected. 


The character of the whole legislation of the States in 
regard to the Indian tribes shows most conclusively that 
their consent to a surrender, either of their lands or liberties, 


13 


194 The Question of Aborigines 


when the substance is looked at, instead of the forms of 
things, will be found to furnish no real foundation of au- 
thority or right to accept either the one or the other. 
One of the first acts of most of the States after assuming 
jurisdiction over the Indians has been to declare unequivo- 
cally their utter incompetency to make a contract upon 
equal terms with the whites, or which should, in equity and 
good conscience, be enforced against them. Their lands 
and persons are both taken into wardship, and the members 
of ancient and independent communities appear no sooner 
to have yielded up their political privileges than they have 
been declared in a state of pupilage and incapable of manag- 
ing their own private affairs. Most of the tribes in the old 
States have guardians, under some denomination or other, 
appointed by law to take charge of their property. 


At the beginning of the report the committee sum- 
marized the general principles of civilized obligations ap- 
plicable to agreements of this peculiar kind, as follows: 


The committee suppose they will not be required to show, 
by any illustration or reference to authorities, that the faith 
of a Government should in all cases be inviolably observed, 
and that, in attending to that indispensable duty, all its 
obligations should be considered; that all just and reason- 
able expectations, besides what may be expressly stipulated 
in a compact, should be allowed; and that the obligation is 
equal whether a treaty or compact be made with a foreign 
State, with independent or subject communities, or with 
individuals, citizens, or aliens. To these may be added, as 
applicable to the present inquiry, the following maxims and 
principles, which are equally sustained by reason and 
authority; first, antecedent engagements or compacts are 
entitled to precedence in the observance of them; second, 
stipulations impossible to be complied with, either for want 
of power or because they involve a violation of the rights 
of third persons or States, if not voluntarily waived, are 
to be compensated; third, the first duty of every Govern- 


Agreements between Tribesand States 195 


ment is to protect the rights and promote the prosperity 
of its own members; yet the rights and interests of others, 
of whatever character or condition, are not to be wantonly 
restricted, nor in any case wholly disregarded. 


The practice of regulating by treaty the relations 
between a civilized State exercising sovereignty over a 
region and the aboriginal tribes inhabiting the region, 
though permissible when these relations can not be 
regulated by the legislative, executive, and judicial ac- 
tion of the State, is recognized as undesirable. 

In the report of the British Parliamentary Committee 
of 1837 on Aboriginal Tribes, it was said: 


As a general rule, . . . it is inexpedient that treaties 
should be frequently entered into between the local govern- 
ments and the tribes in their vicinity. Compacts between 
parties negotiating on terms of such entire disparity are 
rather the preparatives and the apology for disputes than 
securities for peace; as often as the resentment or cupidity 
of the more powerful body may be excited, a ready pretext 
for complaint will be found in the ambiguity of the language 
in which their agreements must be drawn up, and in the 
superior sagacity which the European will exercise in fram- 
ing, in interpreting, and in evading them. 


The wisdom of this suggestion was manifested to the 
British Government by the terrible consequences grow- 
ing out of an agreement made with the Maori Tribes of 
the northern part of New Zealand in 1840, which was 
so unfortunately worded as to give ground for the claim 
that Great Britain had recognized the tribes as an 
independent State, having the title in fee to all the 
land of that part of New Zealand. Incessant trouble 
arose between the home government and the colonial 
government on the one side, and the Maori Tribes and 
the Europeans claiming under them on the other. 


196 The Question of Aborigines 


Twice the matter was considered by parliamentary 
committees—in 1840 and 1844—both of which insisted 
that Great Britain had not intended to make any such 
admission, upholding its full sovereignty and recom- 
mending a compromise adjustment. Finally, in the 
sixties, the matter was settled by a war with the Maoris, 
in which the tribes were defeated and almost destroyed. 
This treaty, known as the treaty of Waitangi, provided 
as follows: 


The chiefs of the Confederation of the United Tribes of 
New Zealand, and the separate and independent chiefs who 
have not become members of the confederation, cede to 
Her Majesty the Queen of England, absolutely and without 
reservation, all the rights and powers of sovereignty which 
the said confederation or individual chiefs respectively 
exercise or possess, or may be supposed to exercise or possess, 
over their territories as the sole sovereigns thereof. 

Her Majesty the Queen confirms and guarantees to the 
chief and tribes of New Zealand, and the respective families 
and individuals thereof, the full, exclusive, and undisputed 
possession of their lands and estates, forests, fisheries, and 
other properties which they may collectively or individually 
possess, so long as it is their wish and desire to retain the 
same in their possession; but the chiefs of the United Tribes 
and the individual chiefs yield to Her Majesty the exclusive 
right of preemption over such lands as the proprietors 
thereof may be disposed to alienate, at such prices as may 
be agreed upon between the respective proprietors and 
persons appointed by Her Majesty to treat with them in 
that behalf. 


The British Government regarded this treaty as 
acknowledging only a personal right of occupancy in 
the aboriginal tribes as respects all land not reduced 
by the tribes to agricultural use, and endeavored to 
extinguish this right by purchase; but the tribes, urged 


Agreements between Tribesand States 197 


on by the colonists who had acquired title from them, 
and by those who expected future profits from trading 
in aboriginal titles to lands, insisted that the treaty 
acknowledged the fee to be in the tribes, and that they 
could sell the fee to any person; and that in case the 
British Government wished to buy, it must pay the 
value of the fee simple. 

A committee of Parliament on the affairs of New 
Zealand in 1840, while affairs were in this condition, 
assuming that the British Government would succeed 
in its claim of right to extinguish the aboriginal occu- 
pancy by purchase, spoke thus in their report concern- 
ing the law applicable to the case, and the policy which 
had been pursued by Great Britain and which it ought 
to have pursued: 


The acknowledgment of the independent nationality of 
the natives has given a sanction to the acquirement of 
lands by individual purchasers, because when the right of 
the natives to sell to all the world was admitted by the 
British Government, it followed that all persons, whether 
British subjects or others, had a right to buy without its 
sanction. Hence the Crown, which, by pursuing a different 
line of policy from the time of the discovery, might have 
prevented the acquirement of land by private purchasers 
at all, appears to be now precluded from applying the proper 
remedy to the evil without legislative aid. 

That remedy would, in the opinion of your committee, 
have been now uncalled for if the British Government had, 
from the year 1769 downward, never lost sight of the prin- 
ciple which was formerly acted upon by this country, and 
by all other European powers, with regard to their North 
American possessions, and had refused to recognize any 
titles to land founded on purchases made by private persons 
from savages. This principle has been adopted by the 
United States and it has constantly guided their Govern- 
ment in its dealings with the various Indian tribes inhabit- 


198 The Question of Aborigines 


ing the North American Continent, and it has been solemnly 
declared by the Supreme Court of Judicature in the United 
States to be a principle of international law. According to 
this principle the nation by whose subjects a new country 
is discovered acquires thereby a title to its possession as 
against all foreign powers. That title, when completed by 
occupation, gives to the discovering nation the sole right 
to purchase the soil from the natives, to establish settle- 
ments within its territory, and to regulate its relations with 
foreign powers. Upon this principle the Governments of 
Europe, as well as that of the United States, have asserted 
their right—a right qualified only by the moral obligation 
of acting with justice to the aborigines—to grant lands to 
individuals in territories so acquired by them; and upon it 
the British Government has recently set aside purchases 
made by individual settlers from the natives in the neigh- 
borhood of Port Philip. 

The wisdom of this principle can not be more clearly 
shown than by referring to the state of New Zealand, where 
it has not been acted on. Large tracts of land have been 
acquired by settlers for nominal considerations—a blanket, 
a hatchet, ora gun. Disputes about the boundaries of land 
purchased have arisen, and conflicting claims to the same 
property have been set up. No surveys of this country 
have been made; and no law to regulate the possession of 
property, its descent, or its alienation is in force. To these 
evils must be added the more serious ones which have been 
caused by the profligate and reckless conduct of some of 
the whites, who have sown among the aborigines the seeds 
of vice and misery. Such have been the results of un- 
restricted colonization in New Zealand. 

Under such a system it was hardly to be expected that 
any portion of the land purchased would be reserved for 
the use of the natives. It will accordingly be found that 
some tribes have been induced to alienate in one sale the 
whole of their lands; a proceeding by which the difficulty of 
civilizing and preserving that interesting race is materially 
increased. 


i > 


Agreements between Tribesand States 199 


Whilst private persons may acquire land in the manner 
described, and dispose of it on whatever terms they please, 
the most approved method of colonization, viz., that of 
disposing of the whole of the waste lands by sale at a 
uniform and sufficient price, can not be carried into effect. 
The Government, it is clear, can not maintain such a price, 
and thus introduce labor into the colony in quantities pro- 
portioned to the extent of land held by private owners, if 
those owners can undersell the Government without loss 
to themselves. 

Your committee, after much consideration, have arrived 
at the conclusion, that irreparable evils will ensue unless the 
Crown shall become the sole proprietor of the whole of the 
soil of New Zealand; and they are of opinion that a good 
system of colonization can not be carried into execution by 
any other means. 

Your committee, therefore, entirely concur in the prin- 
ciple asserted in the recent proclamation of the officers of 
the Crown, “‘that Her Majesty does not deem it expedient 
to recognize as valid any titles to land in New Zealand 
which are not derived from, or confirmed by Her Majesty,”’ 
as well as in the propriety of the appointment of a commis- 
sion of inquiry into claims to land, notified in the said 
proclamations. 


In the year 1844, the situation in New Zealand hav- 
ing steadily become worse, the affairs of the colony 
were again investigated by a parliamentary committee 
which went into the whole subject of the law of nations 
and the bearing of the treaty of Waitangi upon the rights 
of Great Britain as the sovereign State over the aborig- 
inal tribes. The report showed the dangers and difficul- 
ties incident to the attempt to deal with aboriginal tribes 
by treaty. The following are extracts from this report: 


It appears to your committee that the difficulties now 
experienced in New Zealand are mainly to be attributed to 


200 The Question of Aborigines 


the fact that in the measures which have been taken for 
establishing a British colony in these islands those rules as 
to the mode in which colonization ought to be conducted, 
which have been drawn from reason and from experience, 
have not been sufficiently attended to. When it was first 
proposed to establish New Zealand as a British colony 
dependent upon New South Wales, Sir George Gipps, the 
governor of the latter, in a very able address, laid down 
the following principles as those on which he had framed the 
bill, which it was his duty to submit to his legislative council 
for the regulation of the infant colony of New Zealand: 
‘“The bill is founded,’’ he said, ‘“‘upon two or three general 
principles, which, until I heard them here controverted, I 
thought were fully admitted, and indeed received as politi- 
cal axioms. The first is that the uncivilized inhabitants of 
any country have but a qualified dominion over it, or a 
right of occupancy only; and that, until they establish 
among themselves a settled form of government, and sub- 
jugate the ground to their own uses by the cultivation of it, 
they can not grant to individuals not of their own tribe 
any portion of it, for the simple reason that they have not 
themselves any individual property in it. Secondly, that 
if a settlement be made in any such country by a civilized 
power, the right of preemption of the soil, or, in other words, 
the right of extinguishing the native title, is exclusively in 
the Government of that power, and can not be enjoyed by 
individuals without the consent of their Government. The 
third principle is that neither individuals nor bodies of men 
belonging to any nation can form colonies, except with the 
consent and under the direction and control of their own 
Government; and that from any settlement which they may 
form without the consent of their Government they may 
be ousted. This is simply to say, as far as Englishmen are 
concerned, that colonies can not be formed without the 
consent of the Crown.”’ 

There is no room to doubt that it would have been far 
better if British dominion over these islands had been 
asserted as early as 1832, or even 1825; but a different policy 


Agreements between Tribesand States 201 


having been at that time pursued it was considered, in the 
year 1839, when Capt. Hobson was sent out, that the 
difficulties which had thus been created could only be got 
rid of by obtaining from the natives their assent to the 
extension of the authority of the British Crown over New 
Zealand. Acting under the instructions he had received, 
Capt. Hobson, therefore, immediately on his arrival in 
New Zealand, at the beginning of the year 1840, concluded 
with a large number of the chiefs of the northern island, a 
treaty known by the name of the treaty of Waitangi, by 
which, in return for their acknowledgment of British sov- 
ereignty, they were promised protection and guaranteed 
in the possession of all lands held by them individually or 
collectively. The evidence laid before your committee has 
led them to the conclusion that the step thus taken, though 
a natural consequence of previous errors of policy, was a 
wrong one. It would have been much better if no formal 
treaty whatever had been made, since it is clear that the 
natives were incapable of comprehending the real force and 
meaning of such a transaction; and it therefore amounted 
to little more than a legal fiction, though it has already in 
practice proved to be a very inconvenient one, and is likely 
to be still more so hereafter. The sovereignty over the 
northern island might have been at once assumed, without 
this mere nominal treaty, on the ground of prior discovery, 
and on that of the absolute necessity of establishing the 
authority of the British Crown for the protection of the 
natives themselves, when so large a number of British 
subjects had irregularly settled themselves in these islands 
as to make it indispensable to provide some means of main- 
taining good order amongst them. This was the course 
actually pursued with respect to the middle and southern 
islands, to which the treaty of Waitangi does not even 
nominally extend; and there is every reason to presume 
that, owing to the strong desire the natives are admitted 
to have entertained for the security to be derived, from the 
protection of the British Government, and for the advan- 
tages of a safe and well-regulated intercourse with a civi- 


202. The Question of Aborigines 


lized people, there would have been no greater difficulty in 
obtaining their acquiescence in the assumption of sovereign- 
ty than in gaining their consent to the conclusion of the 
treaty; while the treaty has been attended with the double 
disadvantage, first, that its terms are ambiguous, and, in 
the sense in which they have been understood, highly incon- 
venient; and next, that it has created a doubt which could 
not otherwise have existed, and which, though not in the 
opinion of your committee well founded, has been felt and 
has practically been attended with very injurious results, 
whether those tribes which were not parties to it are even 
now subject to the authority of the Crown. 

Your committee have observed that the terms of the 
treaty are ambiguous and, in the sense in which they have 
been understood, have been highly inconvenient; in this we 
refer principally to the stipulations it contains with respect 
to the right of property in land. The information which 
has been laid before us shows that these stipulations, and 
the subsequent proceedings of the governor founded upon 
them, have firmly established in the minds of the natives 
notions which they had then but very recently been taught 
to entertain, of their having a proprietary title of great 
value to land not actually occupied; and there is every 
reason to believe that if a decided course had at that time 
been adopted it would not have been difficult to have made 
the natives understand that, while they were to be secured 
in the undisturbed enjoyment of the land they actually 
occupied, and of whatever further quantity they might 
really want for their own use, all the unoccupied territory 
of the islands was to vest in the Crown by virtue of the 
sovereignty that had been assumed. 

The error in policy which your committee have pointed 
out as having in our opinion been fallen into by the officers 
who have held the government of New Zealand, in not 
asserting the right of the Crown to all the unoccupied soil 
of these islands, is very closely connected with another, to 
which we also feel it necessary to advert. It appears to us 
that there has been a want of vigor and decision in the gen- 


Agreements between Tribes and States 203 


eral tone of the proceedings adopted toward the natives; 
measures have not been taken, as we think they ought, for 
making the original inhabitants understand that they are 
now to be considered as British subjects and must therefore 
abstain from all conduct inconsistent with that character. 
The local authorities may have been guided by a desire 
to treat the natives of the soil with the most scrupulous 
justice and with the greatest consideration; but we are not 
the less persuaded that, not only in what has been done 
with regard to the ownership of land, but also in showing 
too much respect for native customs, they have been led 
to pursue a line of policy which in its consequences must be 
injurious to the true interests of those out of consideration 
to whom it has been adopted. We agree in the opinion 
expressed by one of the witnesses we have examined . 

that the rude inhabitants of New Zealand ought to be 
treated in many respects like children, and that in dealing 
with them firmness is no less necessary than kindness. 
In the first instance there was on the part of the natives a 
disposition to defer with almost superstitious reverence to 
the authority of the Government; and had this authority 
been firmly and judiciously exercised to suppress intestine 
war and all savage and barbarous customs, and to enforce 
between different tribes and between individuals the great 
principles of justice and respect for property, no serious 
resistance would probably ever have been attempted. But 
from an oversensitive fear of infringing upon native rights, 
the authority which, had it been decidedly assumed, would, 
there is every reason to believe, have been willingly sub- 
mitted to, has been lost, and the consequence has been, 
that murder and cannibalism have been allowed to be 
committed unpunished, and that very serious hostilities 
have broken out between different tribes, while the right of 
the British Government to interfere has been repudiated by 
the more powerful party, and the want of the promised 
protection loudly complained of by the weakest. Your 
committee are persuaded that an enlightened humanity and 
a regard for the real welfare of the native tribes require 


204 The Question of Aborigines 


that British power and authority should be resolutely 
exerted to put a stop to such a state of things, to maintain 
internal peace, and to prevent native customs and usages 
from being acted upon in a manner inconsistent with good 
order and morality and with the progress of civilization. 

Your committee can not offer these recommendations, 
tending to what may be thought a more severe enforcement 
of authority over the natives, without at the same time 
expressing their strong sense of the duty incumbent upon 
the Government of adopting the most effective measures 
for their welfare and improvement. With this view we 
conceive that every effort should be made to amalgamate 
the two races; more particularly, the utmost attention 
should be paid to the education and training of the rising 
generation of the aborigines. Whenever their improvement 
in intelligence will admit of it, the natives should be placed 
in every respect on a footing of perfect equality with their 
white fellow subjects, and as soon as possible they should 
be employed in the civil service of the Government in any 
situations in which they can make themselves useful. We 
also attach much importance to the adoption of a good 
system of making reserves of land for their benefit. 


In 1840, at almost the same time that the affairs of 
New Zealand were thus being plunged into confusion 
by the treaty of Waitangi, Capt. (later Sir) George 
Grey, as a commissioner of the British Government to 
report upon the best means of promoting the civiliza- 
tion of the aboriginal inhabitants of Australia, made a 
report to Lord John Russell, then prime minister of 
Great Britain, in which he advocated and gave the 
reasons for governing aborigines directly by special 
laws and regulations adapted to their state of wardship 
and pupilage. This report was regarded as so sound 
by Lord Russell that he sent copies of it to the local 
governors in Australia and New Zealand tobe considered 
and put into effect with such modifications as the local 


Agreements between Tribesand States 205 


situation might demand. The report was in part as 
follows (British Parl. Papers, 1844, vol. 34, Papers 
relating to the Aborigines, Australian Colonies, pp. 


95-102): 


1. The aborigines of Australia having hitherto resisted 
all efforts which have been made for their civilization, it 
would appear that if they are capable of being civilized 
it can be shown that all the systems on which these efforts 
have been founded contained some common error. or that 
each of them involved some erroneous principle; the former 
supposition appears to be the true one, for they all contained 
one element, they all started with one recognized principle, 
the presence of which in the scheme must necessarily have 
entailed its failure. 

2. This principle was that, although the natives should, 
as far as European property and European subjects were 
concerned, be amenable to British laws, yet, so long as they 
only exercised their own customs upon themselves and not 
too immediately in the presence of Europeans, they should 
be allowed to do so with impunity. 

3. This principle originated in philanthropic motives and 
a total ignorance of the peculiar traditional laws of this 
people, which laws, differing from those of any other known 
race, have necessarily imparted to the people subject to 
them a character different from all other races, and hence 
arises the anomalous state in which they have been found. 

4. They are as apt and intelligent as any other race of 
men I am acquainted with; they are subject to the same 
affections, appetites, and passions as other men, yet in 
many points of character they are totally dissimilar to them; 
and from the peculiar code of laws of this people it would 
appear not only impossible that any nation subject to them 
could ever emerge from a savage state, but even that no 
race, however highly endowed, however civilized, could in 
other respects remain long in a state of civilization if they 
were submitted to the operation of such barbarous customs. 

5. The plea generally set up in defense of this principle 


206 ‘The Question of Aborigines 


is that the natives of this country are a conquered people, 
and that it is an act of generosity to allow them the full 
power of exercising their own laws upon themselves; but 
this plea would appear to be inadmissible, for, in the first 
place savage and traditional customs should not be con- 
founded with a regular code of laws; and, secondly, when 
Great Britain insures to a conquered country the privilege 
of preserving its own laws, all persons resident in this terri- 
tory become amenable to the same laws, and proper persons 
are selected by the Government to watch over their due 
and equitable administration. Nothing of this kind either 
exists or can exist with regard to the customs of the natives 
of Australia; between these two cases, then, there is no 
apparent analogy. 

6. I would submit, therefore, that it is necessary from the 
moment the aborigines of this country are declared British 
subjects they should, as far as possible, be taught that the 
British laws are to supersede their own, so that any native 
who is suffering under their own customs may have the 
power of an appeal to those of Great Britain; or, to put this 
in its true light, that all authorized persons should in all 
instances be required to protect a native from the violence 
of his fellows, even though they be in the execution of their 
own laws. 


In the first report of the United States Board of 
Indian Commissioners, established by Congress during 
the term of President Grant in 1869 and under the 
influence of his avowed purpose to establish an enlight- 
ened and humane régime for the Indians (whom, he 
declared in his first annual message, with emphasis, to 
be “‘wards of the Nation’’), it was said: 


The treaty system should be abandoned, and as soon as 
any just method can be devised to accomplish it existing 
treaties should be abrogated. The legal status of the un- 
civilized Indians should be that of wards of the Government; 


Agreements between Tribesand States 207 


the duty of the latter being to protect them, to educate 
them in industry, the arts of civilization, and the principles 
of Christianity; to elevate them to the rights of citizenship 
and to sustain and clothe them until they can support them- 
selves. . . . The honest and prompt performance of all 
the treaty obligations to the reservation Indians is absolute- 
ly necessary to success in the benevolent designs of the 
administration. 


By the act of Congress of March 3, 1871, future 
treaties with Indian tribes were forbidden. This act 
was as follows: 


No Indian nation or tribe within the territory of the 
United States shall be acknowledged or recognized as an 
independent nation, tribe, or power, with whom the United 
States may contract by treaty; but no obligation of any 
treaty lawfully made and ratified with any such Indian 
nation or tribe prior to March 3, 1871, shall be hereby 
validated or impaired. 


Since this act was passed agreements with Indian 
tribes are made, but such agreements are subject to 
the approval of Congress. 

By the treaty of March 30, 1867, between Russia 
and the United States, by which Alaska was ceded to 
the United States, the subjection of the aboriginal 
tribes to the full sovereignty of the United States by 
the cession was recognized; the treaty declaring that 
“the uncivilized tribes will be subject to such laws and 
regulations as the United States may from time to 
time adopt in regard to aboriginal tribes of [the ceded] 
country.” 

By the modern practice of nations, treaties with abo- 
riginal tribes, instead of attempting to regulate the rela- 
tions between the State exercising sovereignty and the 
tribe, as if it were independent, are made for the pur- 


208 The Question of Aborigines 


pose of arranging the terms of the guardianship to be 
exercised over the tribe. Thus in the treaty between 
the British Government and the King of Uganda, after 
the conquest of Uganda by Great Britain in 1894, the 
King, in pursuance of the ‘‘protection’’ granted to him 
by the British Government and maintained through a 
local ‘‘representative’”’ of that Government, agreed to 
the following terms: To make no treaties or agree- 
ments of any kind with any European without the 
_ consent and approval of the British representative; to 
exercise no jurisdiction over Europeans and persons not 
born in Uganda, and to leave the exclusive jurisdiction 
in such cases to the British representative; to allow the 
court of the British representative to exercise such 
jurisdiction in cases in which the aborigines were con- 
cerned as it might deem proper; to assist in the execu- 
tion of the judgments of the British representative; to 
recognize all international acts by which Great Britain 
was bound as binding on the government of the de- 
pendency to such extent as might be prescribed by the 
British Government; to undertake no war or serious 
act of state without the consent of the British repre- 
sentative; to place the assessment and collection of the 
internal taxes and the external duties and the disposal 
of the revenue in the control and revision of the British 
Government; to allow the property of the British Gov- 
ernment in the dependency to be free from taxation; to 
allow all the foreign relations of the dependency to be 
in the hands of the British representative; and to abol- 
ish slave trading and slave raiding and to assist in the 
complete ultimate abolition of slavery in the dependency. 

(British Parl. Papers 1895, vol. 71 (Cd. 7708), 
Africa, No. 7, 1895, pp. 118, 119.) 

In the case of Choctaw Nation v. The United States 
(119 U.S., 1, decided in 1886), the Supreme Court, in 


Agreements between Tribesand States 209 


an action under a treaty between the Choctaw Nation 
and the United States, making a money settlement of 
claims, laid down the rules of interpretation of Indian 
treaties as follows: 


The United States is a sovereign Nation, not suable in 
any court except by its own consent, and upon such terms 
and conditions as may accompany that consent, and is not 
subject to any municipal law. Its Government is limited 
only by its own Constitution, and the Nation is subject to 
no law but the law of nations. On the other hand the 
Choctaw Nation falls within the description in the terms of 
our Constitution, not of an independent State or sovereign 
nation, but of an Indian tribe. As such it stands in a 
peculiar relation to the United States. It was capable under 
the terms of the Constitution of entering into treaty rela- 
tions with the Government of the United States, although, 
from the nature of the case, subject to the power and au- 
thority of the laws of the United States when Congress 
should choose, as it did determine in the act of March 3, 
1871, embodied in 2079 of the Revised Statutes, to exert 
its legislative power. . 


The court quoted the following from the case of 
Worcester v. State of Georgia, 6 Peters, 515, 582: 


The language used in treaties with the Indians should 
never be construed to their prejudice. If words be made 
use of which are susceptible of a more extended meaning 
than their plain import, as connected with the tenor of the 
treaty, they should be considered as used only in the latter 
sense. . . . How the words of the treaty were understood 
by this unlettered people, rather than their critical mean- 
ing, should form the rule of construction. 


The court then proceeded: 


The recognized relation of the parties to this controversy, 
therefore, is that between a superior and an inferior, where- 


14 


210 The Question of Aborigines 


by the latter is placed under the care and control of the 
former, and which, while it authorizes the adoption on 
the part of the United States of such policy as their own 
public interests may dictate, recognizes, on the other hand, 
such an interpretation of their acts and promises as justice 
and reason demand in all cases where power is exerted by 
the strong over those to whom they owe care and protection. 
The parties are not on an equal footing, and that inequality 
is to be made good by the superior justice which looks only 
to the substance of the right, without regard to technical 
rules framed under a system of municipal jurisprudence, 
formulating the rights and obligations of private persons 
equally subject to the same laws. 

The rules to be applied in the present case are those 
which govern public treaties, which, even in controversies 
between nations equally independent, are not to be read 
as rigidly as documents between private persons governed 
by a system of technical law, but in the light of that larger 
reason which constitutes the spirit of the law of nations. 
And it is the treaties made between the United States and 
the Choctaw Nation, holding such a relation, the assump- 
tions of fact and of right which they presuppose, the acts 
and conduct of the parties under them, which constitute 
the material for settling the controversies which have 
arisen under them. The rule of interpretation already 
stated, as arising out of the nature and relation of the par- 
ties, is sanctioned and adopted by the express terms of the 
treaties themselves. In the eleventh article of the treaty 
of 1855, the Government of the United States expresses 
itself as being desirous that the rights and claims of the 
Choctaw people against the United States ‘‘shall receive a 
just, fair, and liberal consideration.”’ 


It is thus evident that the term ‘‘treaty,’’ as applied 
to an agreement between a civilized State and an abo- 
riginal tribe is misleading, and that such an agreement 
is, according to the law of nations, a legislative act on 


Agreements between Tribesand States 211 


the part of the civilized State, made on conditions 
which it is bound to fulfil since it insists that the abo- 
riginal tribe shall be bound in its part. When the execu- 
tive of a civilized State enters into a ‘“‘treaty”’ with an 
aboriginal tribe, it seems clear that he exercises, accord- 
ing to the law of nations, a legislative power over the 
tribe in subordination to the legislature of the State, 
and that ‘‘the legislature is honorably bound by his act, 
and obligated to fulfill” the conditions, unless it repudi- 
ates the agreement before rights under it have become 
vested. 

The modern practice, whereby each agreement with 
an aboriginal tribe is given the form of an organic act 
or charter determining the manner of administration of 
the tribe as a dependent community, or the form of an 
act of legislation assented to by the tribe, seems to be 
consistent with the law of nations and with the honor 
of civilized States. 


CHAPTER X 


THE FOUNDING OF THE INDEPENDENT STATE OF THE 
CONGO, AND ITS EFFECT ON THE LAW AND PRAC- 
TICE OF NATIONS REGARDING ABORIGINES 


N the spring of 1884 there existed two private asso- 
ciations of an international character, one subor- 
dinate to the other, which were making claim for 

recognition as a State having sovereignty of the basin 
of the River Congo. One of these associations—the 
parent association—was known as the International 
African Association; the other—the offshoot associ- 
ation—as the International Congo Association. Their 
claim was based partly on rights of discovery made by 
Henry M. Stanley, an American citizen, who had ac- 
cepted membership and office in the associations, and 
partly on treaties made with aboriginal tribes largely 
through his influence. As Stanley had first discovered 
and explored the Congo basin, the United States 
claimed to have a special interest in the disposition and 
regulation of the region, though disclaiming sovereignty 
for itself in pursuance of its traditional policy of avoid- 
ing entangling alliances and intervention in European 
politics. This special interest it proposed to utilize for 
the benefit of the aborigines of Africa and the citizens 
of all the civilized States. 

In a letter from Secretary of State Frelinghuysen to 
Mr. Tisdel, containing instructions to the latter as con- 
sular agent in the Congo region, dated September 8, 
1884, it was said: 

212 


Founding of the Congo State 213 


An American citizen first traced the Congo to the sea, 
and were we to admit the validity of a claim of sovereignty 
over the region based on discovery, the United States might 
well assert certain rights which they have not set up. The 
policy of this country has been consistent in avoiding en- 
tangling alliances and in refraining from interference in the 
affairs of other nations. From that policy there is no inten- 
tion of departing; at the same time the rights, commercial 
and political, of our citizens must be protected, and in the 
valley of the upper Congo we claim those rights to be equal 
to those of any other nation. (Report of the Secretary of 
State on the Independent State of the Congo, June 30, 
1886, Ex. Doc. Sen. No. 196, 49th Cong., Ist sess., p. 


347.) 


In the letter of instructions from Secretary of State 
Frelinghuysen to Mr. Kasson, United States Minister 
to Germany, as delegate plenipotentiary to the Berlin 
African conference, dated October 17, 1884, it was 
said: 


The attitude of the United States in this question [of 
freedom of navigation of international rivers and of access 
to the riparian territory] has for many years been clear, and 
in the particular case of the Congo this Government was 
among the first to proclaim the policy of unrestricted free- 
dom of trade in that vast and productive region. This 
Government could, consequently, not be expected to coun- 
tenance, either by assent during the progress of the dis- 
cussions or by acceptance of its conclusions, any result 
falling short of the broad principle it has enunciated. 


Having thus stated the minimum upon which the 
United States would insist by reason of its special 
interests in the Congo region by reason of Stanley’s dis- 
coveries, Secretary Frelinghuysen then stated the maxt- 
mum of the hopes of the United States, toward the 


214 The Question of Aborigines 


attainment of which Mr. Kasson was to direct his 
efforts. This part of the letter was as follows: 


So far as the government of the Congo valley is concerned, 
this government has shown its preference for a neutral 
control, such as is promised by the Free States of the 
Congo, the nucleus of which has already been created 
through the organized efforts of the International Associ- 
ation. Whether the approaching conference can give fur- 
ther shape and scope to the project of creating a great State 
in the heart of western Africa, whose organization and 
administration shall afford a guarantee that it is held for 
all time, as it were, in trust for all peoples, remains to be 
seen. At any rate, the opportunity which the conference 
affords for examination and discussion of these questions by 
all the parties directly or indirectly in interest should be 
productive of broad and beneficial results. (J/b., p. 14.) 


At the opening of the Berlin African conference on 
November 15, 1884, a program and draft of declaration 
concerning the establishment of an ‘‘open-door’’ policy 
in the Congo Basin, similar to that applied by the 
civilized States in the case of China and Japan, was 
presented by the German Government. This program 
had evidently been agreed upon in advance by the 
leading powers. Prince Bismarck, who was elected the 
permanent chairman, declared that the policy outlined 
in the proposed declaration was based on ‘‘the régime 
which has been observed for a number of years in the 
relations of the western powers with the countries of 
eastern Asia,’’ which had been ‘‘thus far attended with 
the most favorable results, in that it had restricted 
commercial rivalry to legitimate competition.” (J0., p. 
25!) 

Mr. Kasson, according to his instructions, in a de- 
claration of the policy of the United States read to the 


Founding of the Congo State = 215 


conference at its second session on November 19, 1884, 
accepted this plan for subjecting the Congo region to 
the open-door policy applied in China and Japan, as a 
minimum on which the United States would insist, and 
stated its maximum of hopes and desires. This part 
of the United States’ statement was as follows: 


While declaring the general concurrence of the Govern- 
ment of the United States with the views expressed in the 
opening address of his highness, the president of this inter- 
national conference, it may be useful to state briefly the 
relation of my Government to pending African questions. 

Until the year 1874 a large section of the heart of Africa, 
comprising a great part of its salubrious uplands, was 
wholly unknown both to the geographers and to the states- 
men of Europe and America. 

An American citizen, who was qualified by courage, per- 
severance, and intelligence, and by a remarkable intrepidity 
and aptitude in exploration, resolved, with the support of 
English and American friends, to expose, if possible, to the 
light of civilization this obscure region. With the peaceful 
flag of his country over his tent, and at the head of his 
retainers, he disappeared from the knowledge of his coun- 
trymen; and after 39 very long and very dangerous months 
of exploration and travel, he reappeared with the results of 
his discoveries, which were communicated to the world. 

It is to be observed that from the time he left the eastern 
coast of Africa opposite Zanzibar, during his travels to and 
beyond the upper waters of the Nile, as far as the watershed 
of the Congo, and along the course of that great river, 
while slowly descending toward the sea, and until he saw 
an ocean steamer lying in the lower Congo, he found no- 
where the presence of civilized authority, no jurisdiction 
claimed by any representative of white men save his own 
over his retainers, no dominant flag or fortress of a civilized 
power, and no sovereignty exercised or claimed except that 
of the indigenous tribes. 


216 The Question of Aborigines 


His discoveries aroused the attention of all nations. It 
was evident that very soon that country would be exposed 
to the dangerous rivalries of conflicting nationalities. There 
was even danger of its being so appropriated as to exclude 
it from free intercourse with a large part of the civilized 
world. 

It was the earnest desire of the Government of the United 
States that these discoveries should be utilized for the civi- 
lization of the native races and for the abolition of the slave 
trade, and that early action should be taken to avoid 
international conflicts likely to arise from national rivalry 
in the acquisition of special privileges in the vast region so 
suddenly exposed to commercial enterprises. If that coun- 
try could be neutralized against aggression, with equal 
privileges for all, such an arrangement ought, in the opinion 
of my Government, tosecure general satisfaction. (Jb., p. 34.) 


The maximum of the hopes and desires of the United 
States for the utilization of its special interests in middle 
Africa in the general interests might, it would seem, be 
summarized as follows: First, that all nations should 
unite in founding ‘‘a great State in the heart of western 
Africa whose organization and administration [should] 
afford a guarantee that it is to be held for all time, as 
it were, in trust for the benefit of all peoples’’; second, 
that the obligations of this international trusteeship 
should be ‘‘the civilization of the native races” and the 
assurance of “equal privileges for all’’ as respects ‘‘com- 
mercial enterprises’; third, that the proposed trustee 
State, in order to fulfill its international trusteeship, 
should be “neutralized against aggression.”’ 

The Monroe doctrine, having for its object the in- 
terests of all civilized States and of humanity at large, 
not only did not prevent such a policy respecting middle 
Africa on the part of the United States, but logically 
made it necessary. 


Founding of the Congo State 217 


The United States, therefore, was willing to use these 
international associations as an agent or trustee of 
civilization in carrying out its humane purposes. It 
only required to be satisfied that they were so organized, 
so administered, and so committed to international 
trusteeship that they were likely to effect this purpose. 
Upon being so satisfied its position logically compelled 
it to take the lead in recognizing the associations, or 
one of them, as having at once sovereignty and trustee- 
ship, since only through trusteeship was it possible 
for the humane purposes of the United States to be 
fulfilled. 

In the latter part of 1883 and the early part of 1884, 
when the modern colonizing movement of the European 
States began, due to inventions which caused a sudden 
expansion of trade, manufacture, and transportation, 
middle Africa, from its proximity to Europe, became 
the field of European colonizing operations. The parts 
of the coast not effectively under the sovereignty of a 
European power were claimed by other European 
States, either by mere occupation or by occupation 
under “‘treaties’’ made with the aboriginal tribes, by 
which these tribes acknowledged the sovereignty of the 
occupying State and submitted to its protection. An 
occupancy of the coast, according to recognized prin- 
ciples of international law, might be made the basis of 
an occupancy extending throughout the basins of the 
rivers emptying into the sea on the part of the coast 
occupied. Thus the movement to occupy effectively 
the coasts of middle Africa, unless checked by an 
effective civilized sovereignty in the interior of Africa, 
acting under international responsibility in the common 
interest, would necessarily result in the partition of 
middle Africa among the European powers, and the 
United States would gain nothing for the aborigines of 


218 The Question of Aborigines 


Africa or for the world at large, from its special interests 
under Stanley’s discoveries. 

In February, 1884, Great Britain and Portugal made 
a treaty whereby Portugal’s claim to the coast at the 
mouth of the Congo was recognized by Great Britain, 
thus paving the way for a claim of sovereignty by 
Portugal, and indirectly and ultimately by Great 
Britain as patron of Portugal, over the whole basin of 
the Congo. France sought to prevent this by sending 
explorers and agents into the region north of Portugal’s 
claim, to lay the basis of a sovereignty on its part, 
extending from the Atlantic north of the mouth of the 
Congo through the Congo Basin to the river. Thus the 
Portuguese claim to the whole basin of the Congo 
would be blocked, but at the same time the territorial 
claims of the International Associations to the Congo 
Basin would be reduced. If Portugal and Great Britain 
were allowed to locate at the mouth of the Congo, and 
France on the river above its mouth for a considerable 
distance, they were in a position to close the upper 
basin of the Congo to the outside world and make it 
impossible for the United States to realize its philan- 
thropic plan to utilize its special interests under Stan- 
ley’s discoveries for the good of the aborigines of Africa 
and of all civilized peoples. 

The questions presented to the United States in the 
spring of 1884 were: First, could it, according to the 
law of nations, recognize as a State a private association 
of civilized persons actually exercising a persuasive 
sovereignty over aboriginal tribes in Africa; and, 
second, could it, in its recognition, so far impress an 
international character upon the territory under the 
actual persuasive sovereignty of the association, that, 
in case it could secure the cooperation and consent of 
the powers, the territory would permanently have an 


Founding of the Congo State 219 


international character, assuring its administration for 
the benefit of the aborigines and the world at large, 
regardless of whether there should ever be a cession of 
the sovereignty or not? Unless the maintenance of the 
international character could be made a covenant run- 
ning with the land the philanthropic purpose of the 
United States plainly could not be fulfilled. 

The publicists agreed generally that a private asso- 
ciation actually exercising sovereignty could, by the law 
of nations, be recognized as a State. The question was 
concerning the objects and administration of the asso- 
ciations and the manner of impressing an international 
character upon the territory claimed by them. 

The International African Association was the result 
of an international conference of geographical societies 
held at Brussels in 1876, which had been suggested in 
various quarters, but which was actually called by King 
Leopold II of Belgium. Belgium was under a neutrality 
guaranteed by Great Britain, France, and Germany, 
and was not a colonizing power. It was doubtless felt 
that an international agency to civilize Africa would be 
more likely to appeal to the public as truly international 
if it had its foundation in Belgium, than if it were 
founded in one of the colonizing States. Leopold II, 
having interested himself in geography and exploration, 
naturally was elected to the presidency. 

The plan of an international association to civilize 
Africa was not a new one. The various African negro 
colonization societies in the United States, National and 
State, had suggested the idea. In 1840 Thomas Fowell 
Buxton, in his book on ‘‘The African Slave Trade and 
Its Remedy,” had presented a plan for an international 
association for middle Africa at considerable length and 
with great ability, outlining the objects and presenting 
a scheme of organization. His plan was substantially 


220 The Question of Aborigines 


followed by the Brussels Geographical Conference of 
1876. The conference constituted itself into the Inter- 
national African Association, the object being to form 
a series of scientific stations in middle Africa as foci for 
the efforts of the civilized States to civilize the abo- 
rigines and open up the country to the commerce of 
the world. 

The plan proposed by Buxton, in 1840, was in ad- 
vance of his times. By 1876, however, the develop- 
ments in science and religion which led to the founding 
of the Red Cross Association at about the same time, 
made Buxton’s plan possible. M. Gustave Moynier, 
one of the founders of the Red Cross, was also one of 
the founders of the International African Association, 
and the two associations at the outset evolved on 
parallel lines; the one combatting suffering, the other 
ignorance. The Geographical Congress made a decla- 
ration on the subject of stations, in which it was said: 


In order to attain the object of the International Con- 
ference of Brussels, that is to say, to explore scientifically 
the unknown parts of Africa, to facilitate the opening of 
roads which may cause civilization to penetrate into the 
interior of the African continent, and to discover means for 
suppressing the negro slave trade in Africa, it is necessary: 

First, to organize on a common international plan the 
exploration of the unknown parts of Africa, on the under- 
standing that the region to be explored is to have for its 
boundaries, eastward and westward, the two seas; south- 
ward, the basin of the Zambesi; and northward, the fron- 
tiers of the new Egyptian territory and independent Soudan. 
The means best adapted for this exploration will be the 
employment of a sufficient number of separate travelers 
starting from different bases of operation; second, to es- 
tablish as the bases of these operations a certain number of 
scientific and relief stations, both on the coasts of Africa 


Founding of the Congo State 221 


and in the interior of the continent. Of these stations, some 
will be established, in very limited numbers, on the eastern 
and western coasts of Africa, at points where European 
civilization is already represented, as, for example, at Baga- 
mayo and Loanda. The stations should have the character 
of depots provided with the means of supplying travelers 
with the necessaries of existence. They might be estab- 
lished at small expense, for they would be intrusted to the 
charge of Europeans residing at these points. 

The other stations could be established at points in the 
interior best adapted to serve as immediate bases for ex- 
plorations. The establishment of these latter stations 
could be commenced at the points which at the present 
time recommend themselves as most favorable for the pro- 
posed purpose. . . . The explorers would be able after- 
wards to point out other positions where it would be 
convenient to set up similar stations. 

Leaving to the future the care of establishing safe com- 
munications between the stations, the conference expresses 
the desire that a line of communication as nearly continuous 
as possible should be established from one ocean to the 
other, following approximately the route of Commander 
Cameron. The conference also expresses the hope that lines 
of operation will be subsequently established running from 
north to south. 


The above declaration is taken from the book pub- 
lished in 1877 by Emile Banning, one of the Belgian 
members of the conference, entitled ‘‘L’ Afrique et la 
Conférence Géographique de Bruxelles,’ and translated 
into English by R. H. Major. In this book the consti- 
tution of the International African Association formed 
at the conference is given in full. This association was 
in this constitution called the ‘‘International Commis- 
sion of Exploration and Civilization of Central Africa.”’ 
Mr. Banning, describing the membership of the con- 
ference, says that the delegates were ‘‘selected in such 


222 The Question of Aborigines 


a manner that they should faithfully represent, whether 
they were one or many, the opinions of their different 
nations on the subject of African questions,’’ and that 
‘“‘science, philanthropy, and general policy . . . had 
their representatives.’’ An examination of the list of 
distinguished publicists and scholars who served as dele- 
gates shows that this statement is entirely correct. 
Describing the nature of the organization, Mr. Banning 
said: 


From the nature of the constituent elements of the con- 
ference, there naturally resulted the principles of the or- 
ganism which was to give to its work motion and life. This 
organism comprised three fundamental agencies, an inter- 
national commission, an executive committee, and national 
committees. 

The international commission is the parliament of the 
association. It is composed, according to the terms of the 
resolutions adopted by the conference, of the presidents of 
the principal geographical societies represented at Brussels, 
or adhering to its program, and of two members delegated 
by each national committee. 

The executive committee . . . is composed of the presi- 
dent of the international commission, who sits as such in 
the committee; of three or four members designated in 
the first instance by the conference and subsequently by the 
commission, and of a secretary-general named by the 
president. . 

The national committees are . . . the popular bases 
of the work, the instrument of propaganda, and the foun- 
dation of the pecuniary resources of the association. . 
Each country will determine as it sees fit the method of 
organization [of its national committee]; but everywhere 
they will have the same mission to fulfil, This mission 

. will be to popularize in every way the knowledge 
concerning Africa, to make known the physical and ethnic 
conditions, the needs and the resources, the splendors and 


Founding of the Congo State 223 


the horrors. It will be necessary to interest in the labors 
and the heroic enterprises of travelers, numbers of persons 
whose apathy is only due to their ignorance, to attract 
public sympathy toward the millions of human beings who 
remain excluded from the benefits of civilization, or who 
know of it only by the wrongs which the most unworthy 
of its representatives have inflicted upon them. 


Mr. Banning considered that one of the results of 
the action of the association would be the abolition of 
the slave trade, and that only by efforts such as it 
proposed could the trade be prevented. After referring 
to the declaration of the congress of Vienna and Verona 
against the trade and the international agreements and 
action of the maritime powers for stopping the trade by 
capture of slave-trading vessels, he said: 


It is a universal conviction that the most active cruisers 
are powerless, and that the slave trade can be destroyed 
only upon the very soil which is the scene of its ravages. 
Such is precisely one of the essential objects which the 
international association pursues. In opening up Africa to 
science, to Christianity, to commerce, in civilizing its peo- 
ples, it adopts the true, the only, system which, by the agree- 
ment of all the African travelers, can possibly result in the 
complete and final abolition of the slave trade. It is, then, 
the program of Europe which the association has taken upon 
itself to execute, and what can be more just, then, than to 
expect all the governments to lend it a sympathetic aid. 

Perhaps, if powerfully aided at the same time by 
private beneficence, it might be able to enter upon the ex- 
ecution of its program in several respects at the same time. 


The executive committee named by the conference 
was: King Leopold, of Belgium, as president; Sir 
Bartle Frere, of Great Britain; Dr. Nachtigal, of Ger- 
many; and M. de Quatrefages, of France. 


224 ‘The Question of Aborigines 


The association, in order to distinguish its stations in 
Africa and to give them all a common bond jand symbol, 
adopted a flag—blue, with a golden star in the center. 

The executive committee conducted its operations 
in Africa for a considerable time under the name of the 
Comité d’ Etudes du Haut Congo—the Committee for the 
Study of the Upper Congo—thus avoiding giving offense 
to the European States, especially Portugal and Great 
Britain, who had claims on the lower Congo. Stanley 
himself became a member of the committee and its 
chief representative in middle Africa. 

None of the States saw fit to pay money from their 
treasuries to this private association, and private sub- 
scriptions were small; so that the expenses, which were 
large, had to be borne by the executive committee, and 
principally by Leopold II. The object could evidently 
be attained only by the exercise of governmental power, 
including that of local taxation. The executive com- 
mittee and other persons, almost exclusively Belgians, 
then organized themselves into the International Congo 
Association, as the political agent of the International 
African Association, which was still assumed to be in 
existence by reason of the existence of the national com-: 
mittees, though it never met as an association. The 
International Congo Association, as the political agent 
of the other association, adopted its flag as its own, 
and sent out agents to explore the country and thus to 
complete the claim of discovery based on the discoveries 
of Stanley. Stanley and the other agents of the Inter- 
national Congo Association, under the flag of the origi- 
nal association, made treaties with the aboriginal tribes, 
by which the tribes were by the association recognized 
as “‘free States,’’ and the tribal chieftains, on their 
part, recognized the association as their common agency 
to manage the interest of the tribes. 


Founding of the Congo State 225 


M. Georges Blanchard, in his book entitled Formation 
et Constitution Politique de L’Etdn Iépentadant du Congo, 
published in 1899, speaking of the difficulties of the 
International Congo Association in attempting to or- 
ganize politically the Congo Basin, has said (pp. 28, 29): 


On the one hand, it was necessary to employ a protecto- 
rate compatible with the spirit of independence of the nu- 
merous small independent native sovereignties included 
within the domain of the association. On the other hand, 
it was necessary to have over them an authority which 
would actually be able to induce them to renounce their 
inhuman practices, such as cannibalism. . : 

As long ago as 1879 Col. Strauch, the president of the 
association, had written: ‘‘Our enterprise has in view the 
establishment of a powerful negro state.” But Stanley 
refused to agree to this. The association then proposed to 
him to take for its object the founding of a ‘‘ Republican 
confederation of free negroes,’’ of which King Leopold 
should be the president, residing in Europe. But Stanley 
would not at first accept this idea, considering the negroes 
as too jealous of their independence to lend themselves to 
such a combination. But, nevertheless, after his first re- 
fusal he changed his mind and himself drew up a kind of 
constitution,which, on April 8, 1883, he caused to be adopted 
at Leopoldville by the chiefs and principal men of 58 dis- 
tricts. By this document they declared that they grouped 
themselves into a confederation and deputed to the white 
superintendent at Leopoldville their collective armed force, 
but they maintained formally their independence. This 
treaty served thenceforward as the model for all those 
which the association entered into with the negroes whose 
countries it occupied, and accustomed them gradually to 
the idea of a unitary state. 


Out of this political arrangement came the name 
“The Free States of the Congo,”’ popularly adopted in 


I5 


226 The Question of Aborigines 


1883 and 1884 to designate the aboriginal tribes inhab- 
iting the Congo region, as unified in some sense through 
the International Congo Association under the flag of 
the International African Association. 

As respects the question of how an international 
trusteeship could be impressed upon the association if it 
should be recognized as a State, so that the trusteeship 
should be a covenant running with the land, the use of 
the term ‘‘free States’’ perhaps throws light. The situ- 
ation was analogous to that which existed in the United 
States from 1783 to 1787 as respects the Northwest 
Territory. The States having special interests in that 
territory were willing to renounce these special interests 
only in case they were assured, by a covenant running 
with the land of the Northwest Territory, that it would 
be laid out into ‘‘free States,’’ which should ultimately 
be admitted into the Union; that within the territory the 
aborigines should be justly and humanely treated; that 
all other persons should enjoy the equal opportunity 
and privileges which they enjoyed within the Union; 
and that the territory should be ‘“‘neutralized against 
aggression” by being placed under the plenary sov- 
ereignty and the protection of the United States. These 
matters were made the subject of a fundamental com- 
pact in the ordinance of 1787 for the Government of 
the Northwest Territory adopted by the Congress of 
the Confederation. By the Constitution the United 
States assumed the obligation of this fundamental com- 
pact and has ever since insisted on its fulfillment by all 
the “‘free States,’ which were afterwards organized in 
the territory, as a covenant running with the land. 

The article of this fundamental compact relative to 
aborigines, which, as will be noticed, combined the 
subject of education with that of aborigines, was as 
follows: 


Founding of the Congo State 227 


Religion, morality, and knowledge being necessary to 
good government and the happiness of mankind, schools and 
the means of education shall forever be encouraged. The 
utmost good faith shall always be observed toward the 
Indians; their lands and property shall never be taken from 
them without their consent; and in their property, rights, 
and liberty they never shall be invaded or disturbed unless 
in just and lawful wars authorized by Congress; but laws 
founded in justice and humanity shall, from time to time, 
be made for preventing wrongs being done to them and for 
preserving peace and friendship with them. 


The method of a ‘‘fundamental compact”’ which the 
United States had used in the ordinance for the govern- 
ment of the Northwest Territory was, however, not 
capable of application in the case of the dealings be- 
tween the United States and the International Congo 
Association. The ‘‘fundamental compact”’ in the for- 
mer case was a purely domestic arrangement, operating 
only as a limitation upon the powers of the United 
States and the States in favor of their own citizens. 
A treaty or agreement made by the United States with 
the International Congo Association, imposing a cov- 
enant running with the land of the Congo region for the 
benefit of the inhabitants and the world in general, 
might entangle the United States with European States 
as a party to the compact and a guarantor of the 
association. In order to avoid all possibility of the 
United States assuming responsibility for the dealings 
of the association with the aborigines, and with the 
citizens of civilized States, and at the same time to place 
the association under an international trusteeship in 
this respect which the United States might or might 
not in its discretion cause to be observed, the proper 
course to pursue evidently was for the association to 
make a declaration of international trusteeship, and 


228 The Question of Aborigines 


for the United States to make a response approving on 
grounds of humanity the declaration of international 
trusteeship made by the association, and recognizing 
its flag as the flag of a friendly government. This was 
accordingly done. 

The declaration of the International Congo Associa- 
tion was as follows: 


The International Association of the Congo hereby de- 
clares that by treaties concluded with the legitimate sov- 
ereigns in the basins of the Congo and of the Niadi-Kialun 
and in the adjacent territories upon the Atlantic, there has 
been ceded to it territory for the use and benefit of the 
free States, established and being established under the 
care and supervision (sous la protection et la surveillance) 
of the said association in the said basins and adjacent ter- 
ritories, to which cession the said free States of right 
succeed; 

That the said International Association has adopted for 
itself and for the said free States the flag of the Interna- 
tional African Association, being a blue flag with a golden 
star in the center; 

That the said association and the said States have re- 
solved to levy no customhouse duties upon goods or articles 
of merchandise imported into their territories or brought 
by the route which has been constructed around the Congo 
cataracts; this they have done with a view of enabling 
commerce to penetrate into equatorial Africa; 

That they guarantee to foreigners settling on their terri- 
tories the right to puchase, sell, or lease lands and buildings 
situated therein, to establish commercial houses, and to 
there carry on trade upon the sole condition that they 
shall obey the laws. They pledge themselves, moreover, 
never to grant to the citizens of one nation any advantages 
without immediately extending the same to the citizens of 
all other nations, and to do all in their power to prevent 
the slave trade. 


Founding of the Congo State 229 


To this declaration the United States, by the Secre- 
tary of State (Mr. Frelinghuysen), acting in the name 
of the President and ‘‘pursuant to the advice and con- 
sent of the Senate heretofore given,” responded, ac- 


knowledging receipt of the declaration, and on its part 
declared: 


That in harmony with the traditional policy of the United 
States, which enjoins a proper regard for the commercial 
interests of their citizens while at the same time avoiding 
interference with controversies between other powers as 
well as alliances with foreign nations, the Government of 
the United States announces its sympathy with and approv- 
al of the humane and benevolent purposes of the Inter- 
national Association of the Congo, administering, as it 
does, the interests of the free States there established, and 
will order the officers of the United States, both on land 
and sea, to recognize the flag of the International African 
Association as the flag of a friendly Government. 


(Report of the Secretary of State on the Independent 
State of the Congo, 1886, p. 260.) 

The news that France was preparing to claim a part 
of the Congo Basin was published in the morning news- 
papers of April 22, 1884. The Senate immediately met 
in executive session and released for publication its 
action of a few days previously approving the plan of 
the President to recognize the International Congo 
Association. That afternoon the recognition of the 
United States occurred as above stated. On the next 
day—April 23—the association made an arrangement 
with France giving it the right of preemption in case it 
should ever sell its rights, and receiving in return the 
virtual recognition by France of the association as a 
State, subject to a future settlement of the French 
claims in the Congo Basin. In making this arrangement 


230 The Question of Aborigines 


the association declared as follows in a letter addressed 
by its President to the French minister of foreign affairs: 


The International Association of the Congo, in the name 
of the stations and territories which it has founded on the 
Congo and in the valley of the Niadi-Quillon, declares for- 
mally that it will not cede them to any other power, under 
reserve of particular treaties which may be concluded be- 
tween France and the association for the purpose of fixing 
the limits and conditions of their respective actions. Never- 
theless the association, desiring to give a new proof of its 
friendly sentiments toward France, binds itself to give it 
the right of preference if, through unforeseen circumstances, 
the association should be inclined at any time hereafter to 
realize upon its possessions. 


The French minister of foreign affairs (M. Ferry) in 
reply, on April 24, 1884, said: 


I have the honor of acknowledging receipt of the letter, 
dated the 23d instant, by which, in your capacity as presi- 
dent of the International Association of the Congo, you 
transmit to me assurances and guarantees destined to con- 
solidate our relations of cordiality and of good neighborhood 
in the region of the Congo. I take note of these declarations 
with great satisfaction, and, in return, I have the honor of 
informing you that the French Government engages itself 
to respect the stations and free territories of the association 
and to place no obstacle in the way of the exercise of its 
rights. 


(Formation et Constitution Politique de l’Etat Indé- 
pendant du Congo, by Georges Blanchard, Paris, 1899, 
pp. 366, 367, French Yellow Book on the affairs of the 
Congo, 1884.) 

This arrangement was notified to the powers by cir- 
cular of May 31, 1884. 


Founding of the Congo State = 231 


The Berlin African Conference assembled November 
I5, 1884. The European powers seem to have rejected 
unanimously the claim of the International Congo Asso- 
ciation to be a federalizing agency for the ‘‘free States,”’ 
which were, in fact, aboriginal tribes. Possibly the un- 
fortunate results which had flowed from the attempted 
“confederation’’ of the Maori Tribes in New Zealand 
under the influence of the British reformers of 1840, 
may have had its effect. 

It appears, however, that so late as November 23, 
1884, the idea of a confederation of free States of the 
Congo was still talked of in some quarters, but that 
the ‘‘States’’ then referred to were not the aboriginal 
tribes, but administrative districts, to be instituted in 
the Congo region as Provinces. In a letter from Mr. 
Tisdel to Secretary of State Frelinghuysen, of Novem- 
ber 23, 1884, when the Berlin African Conference was 
in session (Report of the Secretary of State on the In- 
dependent State of the Congo, 1886, p. 352), it is 
said: 


It is the purpose of the association to establish a political 
government and administration under the name of the 
‘Free States of the Congo,” the constitution of which I 
have reason to know has been prepared with the help of 
eminent jurists, and will, in all probability, be laid before 
the conference in Berlin before the sittings will have ended. 
This constitution appears to be based mainly upon the 
British colonial system, dividing the country into three 
States or Provinces under a governor general, himself de- 
pendent upon the executive. 


In the same letter, however, Mr. Tisdel inclosed a 
‘‘Manifesto of the International Association’’ (20., p- 
356) in which the association assumed that by inter- 
national recognition it had become a “‘new State.”’ 


232 The Question of Aborigines 


There is only one reference to the relation of “States” 
to the association. It is said: 


With regard to the question how it is proposed to govern 
the Congo States, the legislation of the Congo territory, 
subject to the supervision and control of the association, 
shall be based upon the principles of law recognized by 
civilized nations and upon the philanthropic principles set 
forth in the well-known plan of the association, whose aim is 
to civilize Africa by encouragement given to legitimate 
trade. 


It would, therefore, appear evident that already in 
November, 1884, and doubtless before the opening of 
the conference on the 15th of that month, the plan for 
regarding the aboriginal tribes as ‘‘free States’ and the 
association as a kind of federalizing and directing bond 
between these aboriginal free States had been concluded 
to be contrary to ‘‘the principles of law recognized by 
civilized nations,”’ and not essential to the carrying out 
of ‘‘philanthropic principles.”’ 

In this respect the European nations doubtless acted 
according to the principles of the law of nations, as 
evolved by their own practice and also by the practice 
of the United States with respect to the Indian tribes. 

On November 8, 1884, a week before the Berlin 
African Conference assembled, Germany made a treaty 
with the International Congo Association recognizing 
it as a unitary State, and on December 16, while the 
conference was in session, Great Britain made a decla- 
ration of recognition and also entered into a commercial 
treaty with the association. The form of recognition 
given by Great Britain was externally the same as had 
been followed by the United States—a declaration by 
the association of the character of its organization, its 
humane objects, and the obligations of international 


Founding of the Congo State 233 


trusteeship assumed by it, and a declaration of approval 
and recognition of Great Britain. The statement of the 
form of organization of the association in its two decla- 
rations, however, differed materially. In the declara- 
tion made to the United States it was said: 


The International Association of the Congo declares 
that by treaties with the legitimate sovereigns in the basin 
of the Congo, and that of the Niadi-Kialun, and in the 
adjacent territories upon the Atlantic, there has been ceded 
to it territory for the use and benefit of free States estab- 
lished and being established under the care and supervision 
of the said association in said basins and adjacent territories, 
to which cession the said free States of right succeed. 


In the declaration made to Great Britain it was said: 


The International Association of the Congo, founded by 
His Majesty the King of the Belgians for the purpose of 
promoting the civilization and commerce of Africa, and for 
other humane and benevolent purposes, hereby declares as 
follows: 

I. That by the treaties with the legitimate sovereigns in 
the basin of the Congo, and that of the Niadi-Kialun, and 
in adjacent territories upon the Atlantic, there has been 
ceded to it territory for the use and benefit of free States 
established and being established in the said basins and 
adjacent territories. 

2. That by virtue of said treaties the management of the 
interests of the said free States is vested in the association. 


(Report of the Secretary of State on the Independent 
State of the Congo, 1886, p. 261.) 

The declaration to the United States, asserting that 
the free States “‘of right succeed” to the rights of 
the association, was a claim of temporary trustee- 
ship for the free States. The declaration to Great 


234 The Question of Aborigines 


Britain, asserting that the free States had by treaties 
‘““vested’’ in the association “‘the management of the 
interests of the said free States’’ was a claim of sover- 
eignty, and was broad enough to be interpreted as a 
claim that the association was the sole sovereign, the 
‘‘free States,’’ being under its guardianship as aborigi- 
nal tribes. 

All the other European States, in the treaties of rec- 
ognition and commerce concluded with the association 
while the conference was in session (collected in the 
report of the Secretary of State on the Independent 
State of the Congo of 1886, pp. 260-275), dealt directly 
with the association as the sovereign of the Congo ter- 
ritory as a unitary State. 

The International Association of the Congo made its 
first communication to the conference on February 23, 
1885, the day upon which the conference agreed to the 
terms of the final act and three days before the confer- 
ence closed its labors. On that day the presiding officer 
of the conference read a letter addressed by the presi- 
dent of the association to Prince Bismarck as the presi- 
dent of the conference, notifying the conference that 
all the powers participating in it, except Turkey, had 
by separate and individual treaties recognized the flag 
of the association as that of ‘“‘a State or a friendly gov- 
ernment.’’ The letter expressed the hope that the 
conference ‘‘would consider the advent of a power which 
takes upon itself the exclusive mission of introducing 
civilization and commerce into the center of Africa as 
a further assurance of the benefits which its important 
labors are destined to produce.”’ 

Referring to this letter, Baron de Courcel, the rep- 
resentative of France, spoke of the association as l Etat 
du Congo—the Congo State. Sir Edward Malet, the 
representative of Great Britain, spoke of it as ce nouvel 


Founding of the Congo State 235 


Etat—this new State. The representatives of Portugal, 
Italy, Spain, Denmark, and Sweden and Norway also 
spoke of it as “‘the Congo State”’ or the “‘new State.” 

The association did not, however, adopt the name of 
the Independent State of the Congo but, with the assent 
of the conference, adhered to the final act on the last 
day, February 26, 1885, by the name of the Inter- 
national Association of the Congo. Prince Bismarck, 
responding to the letter from the president of the asso- 
ciation, which was then read to the conference, announ- 
cing its adherence to the final act, said: 


I believe I express the views of the conference when I 
acknowledge with satisfaction the step taken by the Inter- 
national Association of the Congo and acknowledge their 
adherence to our decisions. The new Congo State is called 
upon to become one of the chief protectors of the work 
which we have in view. I trust it may have a prosperous 
development and that the noble aspirations of its illustrious 
founder may be fulfilled. (Jd., p. 296.) 


The Berlin African conference, therefore, had nothing 
to do with the institution of the Independent State of 
the Congo except, as one may say, to register in the 
most formal way the fact of its “‘advent”’ into the soci- 
ety of nations; the existence of the State being due to 
its own acts in acquiring sovereignty in middle Africa 
and to the separate acts of recognition of the civilized 
States which were the members of the conference. 

In the summer of 1885 King Leopold, who had been 
the president of the International Congo Association, 
became president of the new State, which took the name 
of the Independent State of the Congo; its relationship 
with Belgium being declared to be a personal one, both 
States having the same monarch but having no other 
relationship. 


236 The Question of Aborigines 


President Cleveland on September 11, 1885, wrote to 
King Leopold as follows: 


I have had much pleasure in receiving your Majesty’s 
letter of the 1st of August last, announcing that the posses- 
sions of the International Association of the Congo will 
henceforth form the Independent State of the Congo and 
that your Majesty, under the authorization of the Belgian 
Legislative Chambers and in accord with the association, 
has assumed the title of Sovereign of the Independent 
State of the Congo. I observe your Majesty’s further 
statement that the convention between Belgium and the 
new State is exclusively personal. This Government at 
the outset testified its lively interest in the well-being and 
future progress of the vast region now committed to your 
Majesty’s wise care by being first among the powers to 
recognize the flag of the International Association of the 
Congo as that of a friendly State; and now that the progress 
of events has brought with it the general recognition of 
the jurisdiction of the association and opened the way for 
its incorporation as an independent and sovereign State, I 
have great satisfaction in congratulating your Majesty on 
being called to the chief magistracy of the newly formed 
Government. The Government of the United States, 
whose only concern lies in watching with benevolent expec- 
tation the growth of prosperity and peace among the com- 
munities to whom they are joined by ties of friendship, can 
not doubt that under your Majesty’s good government the 
peoples of the Congo Basin will advance in the paths of 
civilization and deserve the good will of all those States 
and peoples who may be brought into contact with them. 

(Report of the Secretary of State on the Independent 
State of the Congo, 1886, p. 331.) 


On the same day Secretary of State Bayard wrote to 
M. van Eetvelde, administrator general of the Inde- 
pendent State of the Kongo, declining to take action on 


Founding of the Congo State 237 


the note of the Congo State announcing its assumption 
of a status of permanent neutrality under the provisions 
of the final act of the Berlin African Conference, on the 
ground that the United States had not ratified the sig- 
nature of its plenipotentiary to that conference. Sec- 
retary Bayard’s letter concluded thus: 


The relationship of cordial recognition and earnest good 
will heretofore initiated by the Government of the United 
States toward the International Association of the Congo, 
and now confirmed and, I trust, perpetuated in respect of 
the new independent State, is, however, complete in itself 
and apart from any conventional relationship flowing from or 
defined by the general act of the Conference of Berlin; and the 
obligation to respect the precepts of neutrality and friendly 
intercourse is held by the Government of the United States 
to be as perfect toward the Sovereign and Independent 
State of the Congo as toward any and all sovereignties with 
which the United States maintain friendship and inter- 
course. 


The Independent State of the Congo, on July 1, 
1885, forbade to the civilized inhabitants the making of 
contracts with the aborigines for the purchase of lands 
without the consent of a duly authorized officer of the 
State and declared all ‘‘vacant lands”’ to be the property 
of the State; applying the established principles of the 
law of nations as the guardian of the aborigines. (Jb., 
p. 402.) In all its subsequent administration of its 
territory in Africa, it assumed to act on the same 
principles as other European States; recognizing itself 
as bound by the final act of the Berlin African confer- 
ence, in the same manner as the other States having 
possessions in the conventional basin of the Congo. 

The institution of the International African Associ- 
ation and of the International Congo Association un- 


238 The Question of Aborigines 


doubtedly stimulated public interest in the relations of 
civilized States to aboriginal peoples and made possible 
the remarkable development in the law of nations on 
this subject which occurred through the work of the 
Berlin African Conference. The covenants running 
with the land which the United States desired, and 
which it endeavored to initiate through agreements of 
recognition, were, in fact, made real by the action of 
_that conference and by the adherence of the Inter- 
national Congo Association to the final act. The effect 
of the declaration of international trusteeship made by 
the International Congo Association to the United 
States, preliminary to the recognition of its sovereignty 
by the United States, as a declaration running with the 
land and binding Belgium, the present successor of the 
association, is doubtful. The obligations of inter- 
national trusteeship and of guardianship of aborigines 
established by the final act of the Berlin African Con- 
ference are, however, of course, in effect as respects 
all the signatory and adherent powers and their suc- 
cessors; and the adhesion of the association to that act 
binds Belgium as its successor. 


CHAPTER XI 


THE INSTITUTION BY THE BERLIN AFRICAN CONFERENCE 
OF A MIDDLE-AFRICAN ZONE OF INTERNATIONAL 
JURISDICTION AND THE EFFECT OF THIS ACTION 
ON THE LAW OF NATIONS REGARDING ABORIGINES 


HE project to ‘‘create a great State in the heart 
of western Africa, whose organization and ad- 
ministration shall afford a guarantee that it is 

to be held, for all time, as it were in trust for all peo- 
ples,’’ which the United States had supported and which 
it had hoped would be realized by the Berlin African 
Conference was, in substance, realized by the action 
of the conference. 

The conference did not ‘“‘create a great State in the 
heart of western Africa,’”’ although during the time that 
its sessions were going on such a State—the Independent 
State of the Congo—came into existence by the sepa- 
rate acts of recognition of twelve of the European 
States, in addition to the acts of recognition of the 
United States and Germany, which occurred before the 
conference opened. 

But the conference, though it did not create a State, 
created a political and territorial institution affecting 
territory greater in extent than that described as ‘‘the 
heart of western Africa,’ and having in some respects 
the character or, at least, the possibilities of a ‘‘great 
State” administering a ‘‘trust for all peoples.”’ 

The first step taken by the conference in this respect 


239 


240 The Question of Aborigines 


was the establishment of a “‘conventional basin of the 
Congo,’’ which was in fact all middle Africa from ocean 
to ocean, including substantially all the country between 
the Sahara Desert on the north and the rivers forming 
the northern boundary of what has since become South 
Africa. 

Over this middle African zone the conference assumed 
what came very near to being an international over- 
sovereignty, supreme over the sovereignties exercised 
by the States having colonies in the zone. It decreed 
a régime in the nature of a supreme law of the land for 
the region, which the States having colonies in the region 
obligated themselves to follow, but which none of the 
States participating in the conference obligated itself 
to enforce. The zone established seems fairly to be 
described as one of international jurisdiction, since the 
congress was participated in by powers having no colo- 
nies in the region as well as by those having colonies 
there, and was open to the adhesion of all other 
powers. 

As a result of the régime thus established as the 
supreme law of the land for this vast region by the 
assembled powers in the exercise of an international 
jurisdiction, the principles on which the United States 
insisted —of guardianship of aborigines and the open 
door to the commerce and intercourse of civilized per- 
sons—were assured. 

Fourteen States were represented in the Berlin Afri- 
can Conference, namely, Germany, Great Britain, 
France, the United States, Russia, Spain, Austria- 
Hungary, Italy, Holland, Portugal, Belgium, Den- 
mark, Sweden and Norway, and Turkey. 

The program of the conference, as determined in 
advance, was limited to the establishment of an inter- 
national agreement on three subjects: 


The Middle-African Zone 241 


I. Freedom of commerce in the basin and mouths of the 
Congo. 

2. Application to the Congo and the Niger of the prin- 
ciples adopted by the Vienna Congress with a view to 
sanctioning free navigation on several international rivers, 
which principles were afterwards applied to the Danube. 

3. Definition of the formalities to be observed in order 
that new occupations on the coast of Africa may be con- 
sidered effective. (Report of the Secretary of State on the 
Independent State of the Congo, 1886, p. 1.) 


In the discussion of the first two points, involving 
the question of ‘‘the open door’’ for middle Africa, the 
question arose concerning the nature and extent of ter- 
ritory to which it was possible to apply such an inter- 
national political and economic régime. It was evident, 
as soon as the question was examined, that such a 
régime could be effectively applied only to a territory 
which constituted a political, economic, and ethnic unit. 
The geographical basin of the Congo, when examined 
by the conference, after hearing the explanations of 
Stanley, was found to be a region of irregular and com- 
plicated boundaries, having neither a political, an eco- 
nomic, or an ethnic unity. The commercial approach 
to the Congo Basin at that time was from the Indian 
Ocean, to which the geographical basin of the Congo 
did not extend. The negro race was aboriginal through- 
out a territory far more extensive than the geographical 
basin. The claims of the civilized States were certain 
to include the whole region inhabited by the negroes, 
and the territorial boundaries of their respective juris- 
dictions would doubtless take no heed of the geographi- 
cal boundaries of the Congo Basin. 

In order to find the necessary geographical, political, 
economic, and ethnic unit to place under the proposed 
international régime, it was necessary to take in other 

16 


242 The Question of Aborigines 


territory than the geographical basin of the Congo. 
As the conference was called to discuss the freedom of 
commerce in the basin of. the Congo, it fulfilled its 
mandate by agreeing upon a ‘“‘conventional basin of 
the Congo” to which the international régime should 
apply. 

Mr. Stanley proposed a plan for joining to the 
geographical basin of the Congo the territory on 
the Atlantic coast north and south of the Congo for 
a distance of about 300 miles, and also all the ter- 
ritory between the geographical basin of the Congo 
and the Indian Ocean, taking in the great lakes on 
the north and extending south as far as the Zambesi 
River; that is, from the French and English spheres of 
sovereignty and influence on the north to the English 
and Portuguese spheres of sovereignty and influence on 
the south. 

This region was accepted by the conference as the 
region to be subjected to the international régime de- 
termined by the conference, in so far as it should be 
or come under the sovereignty of any of the States sig- 
natory of or adhering to the final act of the conference. 
This region, though already to some extent parceled out 
among the civilized States and the International 
African Association and its successors, and certain to be 
completely parceled out in the near future, was never- 
theless to have an international character as a kind of 
international reservation in which the aborigines should 
be treated justly and all civilized States should enjoy 
equality of opportunity. 

The program of the conference made no special re- 
ference to a consideration of the law of nations regarding 
the relations between civilized States and aboriginal 
tribes; but the conference was evidently unanimous in 
agreeing that the first topic of the conference, ‘‘freedom 


The Middle-African Zone 243 


of commerce in the basin and mouths of the Congo,”’ 
involved the whole question of the relations of the 
colonizing States to the aborigines. Evidently there 
can be no “‘freedom of commerce’”’ in a country inhab- 
ited by aboriginal tribes unless these tribes are given 
their proper and just relationship to the civilized 
governments and their citizens, and peace and order 
prevails. The question of the relations with the 
aborigines was therefore considered in the course of the 
deliberations of the conference on the freedom of 
commerce. 

Provisions insuring equality of opportunity in the 
reservation to all civilized States and their citizens 
were agreed upon, as follows: 


Article II. All flags, without distinction of nationality, 
shall have free access to the whole of the coast line of the 
territories above enumerated, to the rivers there running 
into the sea, to all the waters of the Congo and its affluents, 
including the lakes, and to all the ports situated on the 
banks of these waters, as well as to canals that may in 
future be constructed with intent to unite the water courses 
or lakes within the entire area of the territories described 
in Article I. Those trading under such flags may engage 
in all sorts of transportation and carry on the coasting 
trade by sea and river, as well as boat traffic, on the same 
footing as if they were subjects. 

Article III. Goods, of whatever origin, imported into 
these regions, under whatsoever flag, by sea or river or 
overland, shall be subject to no other taxes than such as 
may be levied as fair compensation for expenditures in the 
interest of trade, which, for this reason, must be equally 
borne by subjects and by foreigners of all nationalities. 
All discriminating duties on vessels, as well as on mer- 
chandise, are forbidden. 

Article IV. Merchandise imported into those regions 
shall be exempt from import and transit duties. The powers 


244 The Question of Aborigines 


reserve to themselves to determine, after a lapse of 20 
years, whether this exemption shall be maintained or not. 

Article V. No power that exercises or that shall hereafter 
exercise sovereign rights in the above-mentioned regions 
shall be allowed to grant therein a monopoly or favor of 
any kind in matters of trade. Foreigners, without distinc- 
tion, shall enjoy the same usage and rights as subjects as 
regards the protection of their persons and possessions, the 
purchase and sale of property, personal and real, and the 
exercise of their vocations. . 

Article VII. The Convention of the Universal Postal 
Union, as revised at Paris, June 1, 1878, shall be extended 
in its operation to the Conventional Basin of the Congo. 
The powers which therein do or shall exercise rights of sov- 
ereignty or protectorate engage, as soon as circumstances 
permit, to take the measures necessary for carrying out 
the preceding provision. (Jb., pp. 208, 209.) 


In the opening address of Prince Bismarck at the first 
session the first words were as follows: 


In extending its invitations to this conference the Impe- 
rial Government was guided by the conviction that all the 
Governments shared the desire to promote the civilization 
of the natives of Africa by opening the interior of that 
continent to commerce, by furnishing the means of instruc- 
tion to its inhabitants, by encouraging missions and en- 
terprises calculated to diffuse useful knowledge, and by 
preparing the way to the abolition of slavery, and especially 
of the slave trade, the gradual abolition of which was pro- 
claimed by the Congress of 1815 as a sacred duty of all 
the powers. 

The interest taken by all civilized nations in the material 
development of Africa assures us of their cooperation in the 
task of regulating commercial relations with that part of 
the world. 

The régime which has been observed for a number of 
years in the relations of the western powers with the 


The Middle-African Zone 245 


countries of eastern Asia having been thus far attended 
with the most favorable results, in that it has restricted 
commercial rivalry to legitimate competition, the Govern- 
ment of His Majesty the Emperor of Germany has thought 
that it might recommend to the powers to introduce into 
Africa, in a form suitable to that continent, the same 
régime, which is founded upon the equality of the rights 
and upon the solidarity of the interests of all commercial 
nations. (Report of the Secretary of State on the Inde- 
pendent State of the Congo, 1886, p. 25.) 


In the draft of declaration on freedom of commerce 
submitted to the conference by the German Govern- 
ment at the first session one of the closing articles was as 
follows: 


All powers exercising sovereign rights or any influence in 
the said territories shall assume the obligation to take part 
in the abolition of slavery, and especially in that of the 
slave trade, to favor and assist the labors of missionaries 
and to encourage all institutions calculated to educate the 
natives and to teach them to understand and appreciate the 
benefits of civilization. (Jb., p. 31.) 


At the session of November 27 this paragraph was 
approved by the conference with an addition proposed 
by Sir Edward Malet (the plenipotentiary for Great 
Britain) whereby the powers also agreed to favor and 
aid ‘‘the exercise of all religions without distinction of 
creed.’’ A proposal was made by M. de Serpa, a dele- 
gate of Portugal, seconding a suggestion of Count de 
Launay, plenipotentiary for Italy, to add to the article 
a declaration against theimportation of spirituous liquors 
and gunpowder into the Congo territory, and also 
against ‘‘the importation of pillories, lashes, and all 
instruments of torture,’’ but these proposals were not 
considered. 


246 The Question of Aborigines 


The matter of the relations with the aborigines was 
then referred to a committee on editing, of which Baron 
de Courcel, plenipotentiary for France, was the chairman 
and Baron Lambermont, plenipotentiary for Belgium, 
the reporter. This committee formulated the declara- 
tion concerning the relations with the aborigines sub- 
stantially as it now appears in the final act, which is as 
follows (Arts. 6 and 9): 


All the powers exercising sovereign rights or influence in 
the aforesaid territories bind themselves to watch over the 
preservation of the native tribes, and to care for the im- 
provement of the conditions of their moral and material 
well-being, and to help in abolishing slavery and especially 
the slave trade. They shall, without distinction of creed 
or nation, protect and favor all religious, scientific, or 
charitable institutions and enterprises created and organized 
for the above ends, or designed to instruct the natives and 
to bring home to them the blessings of civilization. 

Christian missionaries, scientists, and explorers, with their 
escorts, property, and collections, shall likewise receive 
special protection. 

Freedom of conscience and religious toleration are ex- 
pressly guaranteed to the natives, as well as [to] subjects and 
foreigners. The free and public exercise of all forms of 
divine worship, and the right to build edifices for religious 
purposes, and to organize religious missions belonging to 
all creeds, shall not be limited or fettered in any way 
whatsoever. . 

Seeing that the slave trade is forbidden according to the 
principles of international law as recognized by the signa- 
tory powers, and seeing also that the operations which, by 
sea or land, furnish slaves to the trade, are likewise to be 
regarded as forbidden, the powers which do or shall exercise 
sovereign rights or influence in the territories forming the 
conventional basin of the Congo declare that those terri- 
tories shall not serve as a market or means of transit for 


The Middle-African Zone 247 


the trade in slaves, of whatever race they may be. Each 
of the powers binds itself to employ all the means at its 
disposal for putting an end to this trade and for punishing 
those who engage in it. (Jb., pp. 290, 300.) 


The committee, in reporting these provisions, thus 
commented upon them: 


According to the text, as according to the observations 
to which it has given rise in the commission, three elements 
are distinguishable. The first concerns protection so far 
as the development, material and moral, of the indigenous 
populations [is concerned]. In regard to these populations, 
which for the most part should, without doubt, be consid- 
ered as finding themselves without the community of the 
law of nations, but who, in the present state of affairs, are 
scarcely qualified to defend their own interests, the con- 
ference has thought proper to assume the réle of official 
guardian. The necessity of securing the preservation of 
the aborigines, the duty to aid them to attain a higher 
political and social status, the obligation to instruct and 
initiate them into the advantages of civilization are unani- 
mously recognized. 

It is the future of Africa which is here at issue. No dis- 
sent manifested itself, nor could manifest itself, in this 
respect in the commission. 

Two heavy scourges weigh on the actual condition of the 
African people and paralyze their development—slavery 
and the slave trade. Everyone knows—and the witness of 
Mr. Stanley has but confirmed in this respect an accepted 
notion—what deep roots slavery has in the constitution of 
the African societies. Certainly, this malevolent institution 
should disappear; it is the condition even of all progress, 
economic and political; but superintendence [and] changes 
[in social and economic conditions] will be indispensable. 
It is enough to indicate the objects; the local governments 
will seek the means and adapt them to the time and [cir- 
cumstances]. The trade has another character; it is the 


248 The Question of Aborigines 


[very] negation of all law, of all social order. The hunting 
of men is a crime of treason against humanity. It should 
be repressed wherever it [may] be possible to extinguish 
it, on land as on sea. Under this condition the commission 
has . . . prescribed a rigorous obligation. The events of 
which the Egyptian Soudan is at this moment the theater, 
the scenes of which Mr. Stanley has recently been witness 
on the banks of the upper Congo, the abominable expedi- 
tions which, according to Dr. Nachtigal, are frequently 
organized in the central Soudan, and which penetrate to 
the basin of the Congo, demand an intervention which 
the local powers will be compelled to face as a pressing 
duty, a moral mission. But the sphere of action of these 
powers will be for a long time yet limited. It is for this 
reason that the commission asks them to second these gen- 
erous and civilizing beginnings. 

Religion, philanthropy, science may send missionaries, 
who will receive every protection and guaranty. The dec- 
laration as formulated makes no exception of creed or 
nationality; it opens the field to all devotions and covers 
them indiscriminately with its protection and patronage. 


[The] last paragraph concerns religious liberty of con- 
science and religious toleration for the aborigines, [for the 
citizens of the colonizing States and for] foreigners. No 
restriction shall be placed on the free and public exercise 
of worship or on the right to erect religious edifices or or- 
ganize missions belonging to all creeds. . 

[Thus] in another land the moral and material condi- 
tions of the existence of the indigenous populations, the 
suppression of slavery and above all the slave trade, 
[the encouragement of] scientific or charitable institu- 
tions, missionaries, scholars [and] explorers, liberty of 
conscience, and religious toleration are the objects of 
guaranties which correspond to the most elevated design 
of your labors. 

(Report of the Secretary of State on the Independent 
State of the Congo, 1886, pp. 76, 77.) 


The Middle-African Zone 249 


The statement that ‘‘the conference has thought 
proper to assume the réle of official guardian’”’ of the 
aboriginal tribes, as primitive societies “‘without the 
community of nations’ and ‘“‘scarcely qualified to de- 
fend their own interests,’ doubtless meant that the 
conference recognized the civilized States collectively 
as a “community” holding to the aboriginal tribes a 
relationship of overguardianship or chancellorship; the 
aboriginal tribes, as ‘“‘without the community of the law 
of nations’ being subject to that community as wards 
are subject to the chancellor,—the direct guardianship 
being exercised by the States exercising sovereignty over 
the region inhabited by the tribes. 

The extent of the duties of guardianship of aborigines 
recognized by the signatory powers was by the language 
used in the final act left somewhat indefinite. By 
Article VI, above quoted, the powers exercising sover- 
eignty or influence in the conventional basin of the 
Congo bound themselves ‘‘to watch over the preserva- 
tion of the native tribes, and to care for the improve- 
ment of the conditions of their moral and material 
well-being.’’ This, however, was made somewhat more 
definite by the words of the preamble, which declared 
that the powers participating in the conference were 
‘desirous to secure the means of furthering the moral 
and material well-being of the native population.”’ The 
language of the committee in the report above quoted, 
however, placed upon these words a meaning which 
clearly imposed upon the powers exercising sovereignty 
or influence in the conventional basin of the Congo the 
duty of training the aborigines for civilization by the 
direct action of the state. This language was as follows: 


The necessity of securing the preservation of the abo- 
rigines, the duty to aid them to attain a higher political 


250 The Question of Aborigines 


and social status, the obligation to instruct and initiate 
them into the advantages of civilization, are unanimously 
recognized. It is the future of Africa which is here at issue. 
No dissent manifested itself, nor could manifest itself, in 
this respect in the commission. (Jb., p. 76.) 


The action of the conference concerning the relation 
of civilized States to aboriginal tribes above considered 
was all that directly bore on this question. From the 
omission of the conference, however, to refer to treaties 
with aboriginal tribes in the articles of the final act 
relating to the formalities to be observed in order to 
make new occupations effective, and from the discus- 
sions in the conference regarding these articles, the 
opinion of the conference on the effect of such treaties 
under the law of nations may inferentially be ascer- 
tained. 

Articles 34 and 35 of the final act were as follows: 


Any power that may hereafter take possession of any 
territory on the coasts of the African continent outside of 
its present possessions, or that, having had none up to 
that time, shall acquire any, and likewise any power that 
may assume a protectorate there, shall accompany the 
respective act with a notification thereof, addressed to the 
other signatory powers of the present act, in order to enable 
them, if need be, to make good any claims of their own. 

The signatory powers of the present act recognize the 
obligation to insure the establishment of authority in the 
regions occupied by them on the coasts of the African con- 
tinent sufficient to protect existing rights, and, the case 
arising, freedom of trade and of transit on the conditions 
that may have been agreed upon. 


There being no reference in these paragraphs to 
treaties made by the colonizing States or their citizens 
with aboriginal tribes, the inference is necessary that 


The Middle-African Zone 251 


the conference considered that such treaties had no 
effect in determining the right of a State to exercise 
sovereignty over the region inhabited by the tribes. 
As between two or more civilized States disputing the 
sovereignty over a given territory, possibly treaties with 
the aboriginal tribes might be used in evidence by one 
or the other to prove the fact of prior occupation, but 
it was settled that no civilized State could base its title 
to sovereignty on such treaties, or insist, against an- 
other State, on its producing such treaties, as the source 
of its right to sovereignty. 

The “acquired rights,’’ which it was made the duty 
of the occupying State to respect, were not intended to 
cover the rights of the aborigines. The question was 
raised at the session of the conference on January 31, 
- 1885, when the declaration was being considered. Mr. 
Kasson, the plenipotentiary for the United States, in- 
quired what was meant by ‘‘acquired rights,’’ and it 
was answered by the presiding officer of the conference 
and agreed by the delegates that the expression ‘‘ac- 
quired rights,’’ comprised “‘all the acquired rights in 
existence at the time of a new occupation, whether 
these rights belonged to private individuals or to 
Governments.” (Jb., p. 211.) 

Mr. Kasson, on behalf of the United States, stated 
that his Government approved the declaration regard- 
ing new occupations ‘“‘as a first step, well directed, 
though short,’’ and made the following ‘“‘observation,’’ 
which the conference ordered to be recorded as a part 
of the proceedings: 


Modern international law follows closely a line which 
leads to the recognition of the rights of native tribes to 
dispose freely of themselves and of their hereditary terri- 
tory. In conformity with this principle, my Government 


252. The Question of Aborigines 


would gladly adhere to a more extended rule to be based 
on a principle which should aim at the voluntary consent 
of the natives whose country is taken possession of in all 
cases where they have not provoked the aggression. 


He also added to the ‘‘observation”’ a statement of 
his understanding that the conference agreed that the 
acts prescribed in the declaration were “‘the minimum 
of the conditions which must necessarily be fulfilled in 
order that the recognition of an occupation may be 
demanded.”’ 

(Report of the Secretary of State on the Independent 
State of the Congo, 1886, p. 211.) 

The Berlin African act consisted of four ‘‘declara- 
tions,’ two ‘‘acts of navigation,’’ one relating to the 
River Congo and the other to the River Niger, and a 
section containing the ‘‘general dispositions’ relating 
to signature and ratification. By articles 13 and 26, 
the principle of equality of treatment in the navigation 
of each of these rivers, for all nations, without any 
exclusive privilege to any, was ‘“‘recognized by the sig- 
natory powers as forming hereafter a part of the public 
international law.’’ The declaration relative to liberty 
of commerce in the conventional basin of the Congo 
(in which was included the declaration regarding the 
guardianship of aborigines), was regarded by the con- 
ference as establishing an international covenant of a 
permanent nature, running with the land, and binding 
for all time the powers exercising sovereignty in the 
conventional basin. Doubtless the same is true of the 
other declarations, but in regard to this one the confer- 
ence placed itself on record. 

At the session of January 31 , 1885, it was stated by 
Sir Edward Malet, in behalf of Great Britain, that the 
question had been raised whether the provision in this 


The Middle-African Zone 253 


declaration that the signatory powers reserved the right 
to decide, at the end of a period of twenty years, 
whether the exemption from import duties should be 
maintained, implied that after that date the principle 
of equality of treatment and freedom of commerce on 
the rivers and in the conventional basin of the Congo 
might be abolished. He therefore asked that the con- 
ference set this doubt at rest. The unanimous decision 
of the conference, voiced by Baron de Courcel, as chair- 
man of the committee, was that these principles were 
intended to be perpetual. He said: 


The prohibition of discriminating duties, of monopolies 
or privileges, and of all inequality of treatment to the preju- 
dice of persons belonging to a foreign nationality, is affected 
by no limitation of time. The good which results therefrom 
should be considered as a definitive acquisition. The con- 
ference, by inaugurating such a state of things, will have 
accomplished a work which in point of liberality we can 
pronounce, with a feeling of satisfaction, to have been 
hitherto unprecedented. (J0., p. 213.) 


Mr. Kasson, in a letter to Secretary of State Bayard, 
dated March 16, 1885, in which he mentioned the vari- 
ous and complicated questions considered by the con- 
ference, said that those questions had been ‘‘settled 
for all time, for the principles go with the soil.” (O., 
p. 189.) And Sir Edward Malet, in his report to Earl 
Granville, dated December 23, 1884, said, referring to 
the declaration concerning freedom of commerce in the 
conventional basin of the Congo: 


The declaration, as formulated, practically binds the 
territory itself to which those engagements relate. No 
power can occupy any part of it in future except under 
those engagements. Any power, therefore, not represented 


254 The Question of Aborigines 


in the conference, if it acquires possession in the territory, 
would have to respr ct the engagements entered into. (J0., 


Pp. 307.) 


And on February 21, 1885, writing again to Earl 
Granville, and referring to the proceedings at the ses- 
sion of January 31 above quoted, Sir Edward Malet 
said: 


The assurances given, in which the French Ambassador 
emphatically joined, that equality of treatment in the free 
zone is for all time, can not fail to set this question at rest. 


(Ib., pp. 308-309.) 


The action of the Berlin African Conference, there- 
fore, was in the nature of a supreme federal constitution 
or a supreme law of the land, affecting all the States 
then or thereafter exercising sovereignty in the con- 
ventional zone established by the conference. The final 
act was not “‘legislation’’ in the ordinary sense, since 
none of the signatory States bound itself to enforce it. 
But neither was it a mere “intervention,” since the 
powers exercising sovereignty in the region participated 
with powers exercising no sovereignty there, and for 
the same reason it was not a mere “cooperative agree- 
ment’’ of parties engaged in a common work. The 
final act seems to be most correctly described as an act 
of supreme international jurisdiction, the signatory and 
adhering powers being or representing the society of the 
civilized States. If this is the case, the conference es- 
tablished a political entity in middle Africa in the nature 
of a new ‘‘State,’’ federalistic in character, whose ‘“‘or- 
ganization and administration” were so prescribed that 
middle Africa ‘‘is to be held for all time, as it were, in 
trust for all peoples,’ and especially for the aborigines, 
under the terms prescribed by the conference as a cove- 


The Middle-African Zone 255 


nant running with the land, which no State obligated 
itself to enforce, but which any State or group of States 
was at liberty and under moral obligation to enforce. 
This great and novel political entity may perhaps be 
properly described as the ‘‘middle African zone of inter- 
national jurisdiction.” 


CHAPTER XII 


THE FAILURE OF THE PROPOSALS, IN THE BERLIN AFRICAN 
CONFERENCE, FOR NEUTRALIZATION AND SURVEIL- 
LANCE OF THE MIDDLE-AFRICAN ZONE OF INTER- 
NATIONAL JURISDICTION, AS AFFECTING THE 
DEVELOPMENT OF THE LAW OF NATIONS REGARDING 
ABORIGINES 


A. NEUTRALIZATION 


T was evident, when the conference had reached the 
point of agreeing upon the conventional basin of 
the Congo, that they were really establishing and 

legislating for a territorial institution analogous to an 

international reservation. 

The question immediately arose whether or not any 
one or more civilized States should have the right to 
make war in the international reservation, and thus be 
able to set at naught the provisions which all the civi- 
lized States had made for the welfare of all concerned 
within the reservation. As the international reserva- 
tion was to be parceled out among several civilized 
States, there was danger not only that those exercising 
such sovereignty might war with each other, but that 
States not exercising such sovereignty might war with 
those exercising it. Hence there was danger not only 
of wars arising within the reservation, but of the trans- 
fer to the reservation of wars arising outside of it. 

On November 18, 1884, at the second session of the 
conference, Mr. Kasson read the statement setting 

256 


The Middle-African Zone 257 


forth the general policy of the United States referred 
to above. | 
Speaking of Stanley’s explorations, it was said: 


His discoveries aroused the attention of all nations. It 
was evident that very soon that country would be exposed 
to the dangerous rivalries of conflicting nationalities. There 
was even danger of it being so appropriated as to exclude 
it from free intercourse with a large part of the civilized 
world. It was the earnest desire of the Government of 
the United States that these discoveries should be utilized 
for the civilization of the native races, and for the abolition 
of the slave trade, and that early action should be taken to 
avoid international conflicts likely to arise from national 
rivalry in the acquisition of special privileges in the vast 
region so suddenly exposed to commercial enterprises. If 
that country could be neutralized against aggression, with 
equal privileges for all, such an arrangement ought, in the 
opinion of my Government, to secure general satisfaction. 


Speaking of the recognition by the United States of 
the flag of the International Congo Association, the 
statement asserted: 


The President of the United States . . . believes that 
in thus recognizing the only dominant flag found in that 
country he acted in the common interest of civilized nations. 
He regards this local government, or any successor, resting 
on the same bases and principles, as an assurance that the 
dangers of international violence will be averted; that 
the enormity of the slave traffic will be suppressed; that the 
blacks will learn from it that the civilization and dominion 
of the white man means for them peace and freedom and 
the development of useful commerce, free to all the world. 

He therefore desires to see in the delimitation of the region 
which shall be subjected to this benevolent rule the widest 
expansion consistent with the just territorial rights of the 
Governments. In so far as this neutral and peaceful zone 


17 


258 The Question of Aborigines 


shall be expanded, so far he foresees the strengthening of 
the guaranties of peace, of African civilization, and of 
profitable commerce with the whole family of nations. 

(Report of the Secretary of State on the Independent 
State of the Congo, 1886, p. 34.) 


There was general agreement for a neutralization 
of the rivers Congo and Niger, which should be an 
agreement of self-abnegation on the part of the signa- 
tory States and without any guaranty binding them 
to intervene in case the neutrality of the rivers was 
violated. 

The proposition of the United States that the enor- 
mous extent of the Congo Basin—increased largely by 
the agreement of the conference fixing the ‘‘conven- 
tional’’ basin of the Congo—be neutralized raised a 
great number of difficult questions. Should the agree- 
ment for neutralization be one of individual self-abne- 
gation only, or should it include a guaranty that in 
case one or more violated the neutrality the others 
would forcibly intervene? Should the territory be at- 
tempted to be kept free from wars arising in Africa 
itself or should it only be kept from being made a 
theater of war as an incident to wars waged between 
civilized States, the main theater of which was outside 
of Africa? These questions were in fact considered, as 
the proceedings show. Other questions necessarily 
arose and must have been discussed privately, though 
obviously too delicate for public discussion and record. 
Should the renunciation extend to preventing the colo- 
nizing powers from organizing colonial armies and 
navies of any kind in the international zone, or colonial 
armies and navies, the personnel of which should be 
recruited from the aborigines? Or should it prevent 
them from establishing munition plants, arsenals, and 


The Middle-African Zone 259 


naval bases in the international zone? Should the in- 
hibition or renunciation of war be required only from the 
States having colonies in the international zone, or from 
all States? Should the inhibition extend to requiring 
the States having colonial possessions in the inter- 
national zone to punish their citizens who should at- 
tempt to bring about war with another such State by 
exciting aboriginal border tribes to revolution or to the 
commission of atrocities? In view of the opportunities 
which aboriginal tribes have always offered and must 
always offer to adventurers or politicians as a means of 
stirring up international war between civilized States, 
the question of keeping international war out of the 
international zone, or out of any other colonized region 
inhabited by aboriginal tribes, was a peculiarly difficult 
one. 

The original proposition submitted by Mr. Kasson 
was as follows (2b., p. 63): 


To assure in time of war the continuance of the liberty 
of commerce and of navigation before stipulated, should 
war unhappily exist between any two or more powers ad- 
hering to this declaration, each of the signatory powers 
engages itself to treat all the free commercial territories de- 
fined in the first declaration of this conference, together 
with all its water routes, as the territory of a neutral in 
which no act of war shall be committed by either belligerent 
against the other and no articles contraband of war shall 
be supplied therein to either belligerent; and each of the 
signatory powers reserves the right to cause this stipulation 
to be respected. 


This proposition came up on December 10 before the 
general committee of the conference, during the dis- 
cussion in regard to the article neutralizing the Congo 
River and the works connected with its navigation. 


260 The Question of Aborigines 


The report of the committee referring to the proposi- 
tion was as follows (2b., pp. 103, 104): 


According to that plan, it is not only the river, the assimi- 
lated watercourses, and the roads that are to be declared neu- 
tral in time of war; all the territories forming part of the 
conventional basin of the Congo, as marked out in Article I 
of the declaration as to the freedom of commerce, are to be 
placed under the same regimen. Any act of hostility in 
those localities on the part of the belligerents is to be pro- 
hibited, and no article classed as contraband of war is to 
be furnished to them. Finally, the signatory powers are 
to have the right to cause this neutrality to be respected. 

In a statement which he read to the commission, Mr. 
Kasson explained and justified his proposition. He did not 
propose, he said, absolutely to exclude the hypothesis of a 
war between powers situated on the banks of the Congo; 
he wished, however, to prevent any European or American 
powers, whether they had or had not any possessions in the 
basin of the Congo, from making that the theater of hos- 
tilities in case of any such hostilities breaking out. Colonial 
wars considerably hampered and for a long time paralyzed 
the prosperity of the American colonies. The same experi- 
ence should not be repeated in Africa. The efforts that 
shall be made and the establishments that may be created 
at great expense ought not to be threatened or destroyed 
by rivalries and contests in which these States them- 
selves have no interest. In order to prevent any mis- 
understanding of his idea, Mr. Kasson translated it in terms 
conformable to the explanations contained in his mémotre 
justicattf. 

At the request of Mr. von Kusserow [a delegate of Ger- 
many], the jurists present at the session were requested 
to make their views known. Prof. Asser, delegate of the 
Netherlands, supported the motion made by Mr. Kasson, 
for the reason that the freedom of rivers in time of war is 
not included in that of territories. He made a distinction 
between the liberty of continuing commerce and neutrality, 


The Middle-African Zone 261 


and he rendered homage to diplomacy aiding the progress 
of the science of international law. 

Mr. Travers Twiss, British delegate, thought that it 
would be difficult to maintain neutrality in Africa in case 
of a war between the powers owning colonies there. If, 
however, it was proposed not to forbid war but to circum- 
scribe its theater, the proposition was a practical one. 

Mr. Engelhardt, French delegate, stated that they were 
agreed as to the maintenance of navigation in time of war. 
Neutrality applied to watercourses only did not seem liable 
to objection. 

After these explanations the commission took up the real 
subject of the debate. 

The ambassador of England declared that his Govern- 
ment was ready to subscribe to the engagement proposed 
by the plenipotentiary of the United States and that it 
accepted it in the widest sense that it might be desired to 
give to it. 

Count Hatzfeldt [German delegate] expressed himself in 
the same terms on behalf of Germany, which, he said, was 
disposed to extend, as far as possible, the immunity which 
had been proposed. 

The plenipotentiary for Italy [Count de Launay] shared 
this view. He hesitated to suggest an arbitration, which 
did not seem likely to receive the unanimous vote of the 
conference; he thought, however, that the mediation clause 
inserted in the twenty-third clause of the Paris conference 
might be taken up again, and that, for this special case, 
greater efficacy might be given toit. He placed this opinion 
under the patronage of the Chevalier Mancini, whose com- 
petence is likewise recognized in the science of international 
law. 

Mr. de Serpa Pimental, the plenipotentiary of Portugal, 
thought that Mr. Kasson’s plan threatened the sovereignty 
of the Congo States [and] of the powers having colonies 
there. The effect of its application might be to subject 
the territory of the same State or colony to two different 
international régimes if it was traversed by the line of 


262 The Question of Aborigines 


demarkation of the Congo basin. For these reasons he 
could not concur in said plan. 

Mr. von Kusserow [German delegate] expressed himself in 
a different sense. He thought that the American proposi- 
tion was inspired by the same thought that presided at 
the convocation of the conference. It accorded with the 
common interest. All that was necessary was to assume 
the engagement to limit the field of future hostilities, to 
renounce the pursuit, in the basin of the Congo, of a conflict 
having its origin elsewhere. The States and colonies of 
the Congo would not be involved in wars that did not con- 
cern them. The plenipotentiary of Germany [Prince Bis- 
marck] would support any combinaton made in this 
spirit. 

Baron Lambermont [Belgian plenipotentiary] said that 
if any State should be friendly to the principle of neutrality 
that State was certainly Belgium, which is indebted to it 
for a long period of peace and prosperity. He remarked, 
nevertheless, that if, according to Mr. Kasson’s proposition, 
all that was wanted was a pledge not to make war in the 
basin of the Congo, Belgium would merely act on its 
character of a neutral in subscribing to such a pledge. 

The ambassador of France [Baron de Courcel] objected to 
the proposition presented by the United States minister. 
Neutrality, said he, can exist in but two forms; it is either 
voluntary and free or it is compulsory and guaranteed. 
The latter is not under discussion and the former is not 
decreed. Hence the proposed measure would be without 
practical value. No belligerent Government having pos- 
sessions in the basin of the Congo could submit to it. It 
can not be asked that a belligerent State shall deprive 
itself of a part of its means of action. Baron de Courcel 
added that such an engagement could not be kept. When 
a State is at war, it wages war by all the means in its power. 
The compromise proposition concerning navigable water- 
courses and roads realizes all that is practicable in Mr. 
Kasson’s plan. This proposition, he said, is a great step 
in advance, since it consecrates the principle of the inviola- 


The Middle-African Zone 263 


bility of private property both of belligerents and neutrals 
on the said waters and roads. 

The ambassador of Italy [Count de Launay] said that 
the point in question was not so much to render the basin 
of the Congo neutral as it was to assume an engagement in 
virtue of which the signatory powers should renounce carry- 
ing on wars in that basin. 

It is only the safety and the expansion of the great mar- 
ket that is to be opened on the banks of the Congo, added 
Mr. von Kusserow, that it is desirable to secure. 

At the conclusion of this exchange of views the plenipo- 
tentiary of the United States defended his plan. He 
declared that it did not contemplate wars in Africa, but for- 
eign wars transferred to Africa. It only sought to prevent 
the basin of the Congo from becoming the scene of conflicts 
that did not concern it and to prevent belligerents from 
rousing the native tribes, which are already but too much 
given to fighting and plunder. Our proposition, said he, 
is not only humanitarian, but it has a very practical 
sense. 


As a result of the discussion it was agreed to discon- 
nect the provisions for freedom of commerce of the 
rivers from those relating to the renunciation of hostili- 
ties in the international zone, and that the latter 
question should be taken up later. 

The committee on editing on December 15 proposed 
as a substitute an agreement of mutual self-renuncia- 
tion, mediation, and arbitration, as follows (2., pp. 
88, 89): 


In order to secure the maintenance of the freedom of com- 
merce and navigation, even in time of war, in all the dis- 
tricts comprised within the conventional basin of the 
Congo, and place [them under] the régime of commerce 
and liberty according to article 1 of the declaration of this 
conference, and to the reservations therein stipulated, the 


264 The Question of Aborigines 


signatory powers of the present declaration, or subse- 
quently adhering thereto, adopt the following: 

I. In case of war between the powers signing the present 
declaration or subsequently adhering thereto, and having 
no possession in the conventional basin of the Congo, the 
belligerent powers renounce the extension of hostilities [to 
the territories] comprised in the said basin. 

II. In case of war between powers exercising rights of 
sovereignty [or] protectorate in the said basin, each of the 
belligerents shall likewise renounce the extension of hos- 
tilities to [the territories comprised in] the said basin. 

III. In case of war between powers, one of which exer- 
cises and the other does not exercise rights of sovereignty 
[or] protectorate in the said basin, they shall likewise 
renounce the extension of hostilities to the territories 
comprising [comprised?] in that basin, and the colonial 
possessions of the first power shall be considered on both 
sides as the territory of a non-belligerent State. 

IV. In case difficulties should arise between any of the 
powers signing the present declaration or subsequently ad- 
hering thereto who possess colonies in the said basin and 
States which may be established there, or shall establish 
themselves there, the parties renounce any recourse to hos- 
tilities and pledge themselves to abide by the mediation [or] 
arbitration of one or more friendly powers. 


On December 28 the general committee presented 
another draft of a resolution, which met with the ap- 
proval of Germany, the United States, Great Britain, 
and Italy, in the following words (2b., 155, 156): 


In order to insure the freedom of commerce and naviga- 
tion, even in time of war, in all the countries mentioned 
in paragraphs 1 and 2 of Article I of the present declaration 
and placed under the régime of commercial freedom, the 
signatory powers of the present declaration adopt the fol- 


lowing principles: 
The whole of the basin, including the territories which 


The Middle-African Zone 265 


are there found subject to the sovereignty or the protecto- 
rate of one of the belligerent powers, shall be considered 
as the territory of a non-belligerent State. 

Consequently, in the case of war between the signatory 
powers of the present declaration, these engage to renounce 
the extending of hostilities into the territories included in 
this basin or the making of them serve as the base of opera- 
tions of war. 

The vessels of the belligerents shall be forbidden to remain 
in the territorial waters of this basin, except in case of storms 
or for necessary repairs. 

In such cases the belligerent vessel shall quit these waters 
so soon as the storm shall have ceased or the damages shall 
have been repaired. It shall not coal there except in such 
quantity as may enable it to reach the nearest national 
port situated outside the basin. 

In case difficulties should arise between the signatory 
powers of the present declaration which may exercise sov- 
ereign or protectorate rights in the said basin, the parties 
renounce the recourse to hostilities in the said basin and 
engage to appeal to the mediation or refer to the arbitration 
of one or more friendly powers. These engagements shall 
likewise include the independent States established on the 
littoral of the oriental zone mentioned in paragraph 3 of 
Article I of the present declaration under condition of their 
consent. 


Great Britain proposed to add a provision prohibiting 
belligerent vessels, after coaling in the harbors of the 
lower Congo, from taking coal again there until after 
an interval of three months. 

France, by Baron de Courcel, declined to consent to 
this formula, for the reasons given by him in opposition 
to the original proposition of the United States, but 
intimated that he would propose a formula, and the 
matter went over until February 23, 1885, the third 
day before the close of the conference. 


266 The Question of Aborigines 


On December 28, 1884, at the time the committee 
offered this proposal of neutralization, the United 
States, Germany, Great Britain, and Italy had recog- 
nized the International Congo Association as a State 
apparently by boundaries which included the territo- 
ries claimed by France and Portugal. Austria made a 
commercial treaty with the association on December 
24, and Holland on December 28, without mention of 
territorial limits. Spain made a similar treaty on Janu- 
ary 7, 1885. On February 5, 1885, France came to an 
agreement with the International Congo Association by 
which it recognized the association, and the association 
yielded its claim to most of the region claimed by France 
north of the lower Congo, subsequently known as the 
French Congo, and on February 14, 1885, the Portu- 
guese claims were adjusted so that Portugal controlled 
only the south side of the mouth of the Congo and the 
association the north side for a considerable distance 
(1b., pp. 230-240). 

It was made a provision in the treaties of the associa- 
tion with France and Portugal that these two States 
should use their influence in the conference to obtain 
the neutralization of the territories of the association 
(1b., pp. 240, 243). 

On February 23, 1885, after the association had been 
admitted to the conference as one of the parties, Baron 
de Courcel, as chairman of the general committee, pre- 
sented a proposition approved by the committee relat- 
ing to the neutralization of the Congo Basin. This 
proposition was adopted and forms a part of the final 
act (Art. X, XI, and XII). These articles are as follows 


G0 ip s00)s 


ARTICLE X. In order to furnish a new guarantee of secu- 
rity to trade and industry and to encourage, by the main- 


The Middle-African Zone 267 


tenance of peace, the development of civilization in the 
countries mentioned in Article I, and placed under the 
system of commercial freedom, the high signatory parties 
to the present act, and those who shall hereafter adopt it, 
bind themselves to respect the neutrality of the territories 
or portions of territories belonging to the said countries, 
including the territorial waters, so long as the powers which 
exercise or shall exercise the rights of sovereignty or pro- 
_tectorate over those territories, using their option of pro- 
claiming themselves neutral, shall fulfill the duties which 
neutrality requires. 

ARTICLE XI. In case a power exercising rights of sover- 
eignty or protectorate in the countries mentioned in Article 
I, and placed under the free-trade system, shall be involved 
in a war, the high signatory parties to the present act, and 
those who shall hereafter adopt it, bind themselves to lend 
their good offices in order that the territory belonging to 
this power and comprised in the conventional zone of com- 
mercial freedom, may, by the common consent of this power 
and of the other belligerent or belligerents be placed during 
the war under the régime of neutrality and be considered 
as belonging to a non-belligerent State, the belligerents 
thenceforth abstaining from extending hostilities to the ter- 
ritories thus neutralized, and from using them as a base for 
warlike operations. 

ArT. XII. In case a serious disagreement originating on 
the subject of or within the limits of the territories of Article 
I and placed under the system of commercial freedom 
shall arise between any signatory powers of the present act, 
or the powers which may become parties to it, these powers 
bind themselves, before appealing to arms, to have recourse 
to the mediation of one or more friendly powers. Ina simi- 
lar case the same powers reserve to themselves the option 
of having recourse to arbitration. 


Baron de Courcel, in behalf of the committee, made 
an explanatory statement, as follows (2b., pp. 276, 


277): 


268 The Question of Aborigines 


It is not the first time that this idea [of neutralization] 
has appeared in your deliberations. In the course of the 
examination of the declaration on the freedom of commerce, 
as also in the discussion on the acts of navigation of the 
Congo and of the Niger, the idea of neutralizing the whole 
or a part of the territories of the conventional basin was 
first expressed. It was even partially applied in the posi- 
tion assigned to these two rivers in time of war (arts. 25 
and 33). The minister of the United States had submitted 
to you an extended proposal which would have fixed, on the 
whole territories, provisions analogous to those which had 
obtained your consent in dealing with the river region. 
This proposal, as it stood, at once met the approval of 
several of the plenipotentiaries; nevertheless, certain doubts 
as to the practical range of the terms neutrality and neu- 
tralization as applied to territories, the care of or the respect 
for the sovereignty of States, the uncertainties even which 
then existed as to the future division of the countries in the 
basin of the Congo, prevented an agreement from being 
reached on a formula that would be satisfactory in every 
emergency. 

These difficulties diminished notably afterwards. At the 
time when the conference was drawing to the end of its 
task, circumstances appeared to allow the solution of a 
problem which it had not abandoned without regret. In- 
spired with this thought, and combining divers elements 
that had been produced in the course of the former dis- 
cussions, the ambassador of France took the initiative in 
a proposal of an essentially compromissorial character. 
Your commission had not received instructions to deal 
with this point, but it thought that by agreeing to it, it 
would meet your views and facilitate the progress of your 
work. 

On examination, the proposal of the French plenipoten- 
tiary did not raise serious dissent. The ambassador of 
England agreed to it. Some plenipotentiaries, whose views 
were expressed by Count de Launay and Mr. Kasson, 
would have preferred a fuller and wider solution, but this did 


The Middle-African Zone 269 


not prevent them agreeing to the proposal which finally 
united all the votes. It only remains for me briefly to 
describe its sense and scope. 

The first of the three articles submitted to you provides 
that the powers exercising the right of sovereignty, or of 
protectorate, within the conventional basin of the Congo, 
may, by proclaiming themselves neutral, secure to their 
possessions the benefit of neutrality. In this case, and 
this is the essential meaning of the clause, the signatory 
powers engage beforehand to respect this neutrality, un- 
der the sole reserve of the correlative fulfillment of the 
duties which it imposes. This engagement is not only 
contracted toward the power which issues the declaration 
of neutrality but toward all the other signatory powers 
which thus acquire the right to demand that it shall be 
respected. 

No limit is imposed upon the declaration of neutrality, 
which may. be temporary or perpetual. It has been explic- 
itly understood that this provision applied especially to the 
State which the International Association of the Congo is 
about to found and which it appears to have the intention 
of placing under the system of permanent neutrality. This_ 
wish, therefore, obtains the assent and sanction of the 
powers in advance. Nevertheless, other States have, or 
will have, possessions in the basin of the Congo and may 
wish toclaim the same privilege. There are at present two 
which possess colonies hitherto held under the same system, 
situated partly in the conventional basin, partly outside 
of it. It was impossible either to exclude these territories 
from the neutrality clause or to include them wholly, be- 
cause the neutralization, placed under the optional guaranty 
of the signatory powers to the general act, could not in any 
way be extended beyond the limits of the conventional 
basin. To guard against this difficulty the article contem- 
plates not only the territories but ‘‘the parts of territory 
dependent upon the said countries.’’ In addition, the fol- 
lowing article contemplates more especially the situation 
of the powers that are in this position. Let us add, as the 


270 The Question of Aborigines 


ambassador of England has remarked, that the power of 
declaring themselves neutral would belong to those powers 
exercising a sovereignty or protectorate in the territories 
of the conventional basin of the Congo which may ad- 
here to the act in the same manner as to the signatory 
powers. Such would be the case, for example, with the 
Sultan of Zanzibar if he should adhere to the general act 
and place his States under the system defined by this 
act. 

The second article has for its object to withdraw as much 
as possible from the evils of war the regions included in the 
basin of the Congo, without, nevertheless, interfering with 
the sovereignty of the governments. It provides for the 
case in which a power possessing a colony might be involved 
in a war of which the cause or the origin might be foreign 
to its African possessions. The signatory or adhering pow- 
ers bind themselves, therefore, to tender their good offices 
to bring the two belligerent parties to consent, the one not 
to extend hostilities to the countries situated in the basin 
of the Congo and the other not to make them a base for 
military operations. If this reciprocal consent is obtained 
the territories to which it refers will in fact be rendered 
neutral during the continuance of the war. 

The third article contains an engagement to have recourse 
to a preliminary mediation if a conflict shall arise in Africa 
itself, between powers exercising rights of sovereignty in 
the basin of the Congo. . . . Mediation does not exclude 
the possibility of war; it may fail to prevent it. It is less 
than arbitration, which respect for the independence of 
States prevents a priori from being imposed, but it is more 
than a simple recourse to good offices. In reality, mediation 
will generally be efficacious and will very often lead to the 
smoothing away of international difficulties. To the State 
—the growing Congo State—which all the powers wish to 
surround with pacific guarantees, this provision is of real 
value, because it obliges the States that may have a dis- 
agreement with it to have recourse to the mediation of the 
friendly powers. 


The Middle-African Zone 271 


B. SURVEILLANCE 


The question of placing the zone under an inter- 
national commission of surveillance was considered in 
the conference. 

In the original draft of declaration laid before the 
conference by Prince Bismarck at the first session, the 
final paragraph was as follows: 


With the reserve of ulterior arrangements between the 
Governments signing this declaration, and those powers 
which shall exercise rights of sovereignty in the territories 
in question, the international commission for the naviga- 
tion of the Congo, appointed in virtue of the act signed at 
Berlin on the , in the name of the same Govern- 
ments, shall be charged with the [surveillance] of the appli- 
cation of the principles proclaimed and adopted by this 
declaration. (Report of the Secretary of State on the Inde- 
pendent State of the Congo, 1886, p. 33.) 


At the session of the conference on November 27, 
1884, this proposition was taken up for discussion. The 
proceedings were as follows (zb., pp. 58-59): 


Mr. de Serpa, [delegate of Portugal], thinks that the su- 
pervision attributed by this paragraph to the international 
commission of the Congo would impede the liberty of ac- 
tion and the legitimate initiative of the territorial govern- 
ments, and would create perpetual occasions of conflict. 
The local authorities would have responsibility for their 
acts, and should preserve their full liberty of administration. 
To take this from them would be to compromise the devel- 
opment of colonies. 


Baron de Courcel, plenipotentiary for France, sug- 
gested that the discussion be postponed ‘‘until the con- 


272, The Question of Aborigines 


stitution of the commission should have been decided 


and regulated.”’ 
Mr. Kusserow, [delegate of Germany], said: 


The German Government had not the least intention to 
encroach upon the sovereign rights of Governments recog- 
nized or to be recognized. But, meanwhile, it seemed to 
him necessary not to leave without control the liberty of 
commerce in the basin of the Congo. . .. The inter- 
national commission of the navigation of the Congo ap- 
peared to him to be a competent organ to be personally 
charged with that control. For the rest, the plenipoten- 
tiaries of Germany indorse the opinion of the French 
ambassador, inclining to adjourn the discussion of this 
paragraph till the erection of the international commission 
in question. 


About December 15, 1884, the general committee 
presented a draft of articles concerning the navigation 
of the Congo, containing provisions for the establish- 
ment of an international commission of navigation, ac- 
companied with a report of the proceedings of the 
committee during its consideration of this subject (2b., 
pp. 89-102). The committee stated that it had based 
its action upon the principles derived from a study of 
the conventional régimes adopted by international 
agreement in the case of the Rhine, the Scheldt, the 
Parana and Uruguay, and the Danube (2d., p. 94). 
The European commission of the Danube, established 
by the treaty of Paris of 1856, was adopted as the model 
on which the international commission ‘of navigation 
of the Congo was to be formed (2., pp. 97-99). In the 
report it was said (2b., p. 97): 


We have already stated in the introduction to this report 
that the Paris congress was induced in 1856 to charge a 


The Middle-African Zone 273 


European commission with the measures to be adopted 
for the improvement of the navigation of the Danube, and 
that that commission had justified, by the services rendered 
by it, the expectations of the Governments and of com- 
mercial men. 

The desire that such a commission might be appointed 
on the Congo has recently been expressed in various quar- 
ters, and has found practical expression in the draft of a 
navigation instrument prepared by the German Govern- 
ment. 

Your commission has adopted this idea without dis- 
cussion. If debates have arisen, they have had special 
reference, as you will see hereafter, to the character of the 
task to be intrusted to the international commission and 
to the nature and limits of its powers. 


In the project of declaration regarding the naviga- 
tion of the Congo, presented by the general committee 
and accompanying this report, it was provided as fol- 
lows (20., p. 81): 


ARTICLE VII. An international commission is instituted, 
empowered to secure the execution of the provisions of the 
present act. 


The report of the committee shows that the delegates 
of Belgium proposed that the international commission 
should be independent of the territorial authority, and 
that its officials should have the benefit of extraterri- 
toriality, as in the case of the Danube commission; 
but that this proposition met with objections from 
several powers, notably France and Portugal (2b., 
p. 98). 

The report also shows that a proposal was made that 
the loans contracted by the international commission 
should be held to be guaranteed by the States signing 
the final act or adhering thereto, and that this proposal 

18 


274. The Question of Aborigines 


was opposed by the United States and the Netherlands 
(4b., pp. 100, IOT). 

By the final act of the conference the navigation of 
the Congo, its affluents, and the roads, railways, or 
lateral canals ‘“‘constructed with the special object of 
obviating the innavigability or correcting the imper- 
fection of the river route on certain sections of the 
course of the Congo”’ were made ‘“‘free for the merchant 
ships of all nations equally, whether carrying cargo or 
ballast, for the transportation of both merchandise and 
passengers.’ Only taxes or duties of a non-discrimi- 
nating character and ‘“‘having the character of an 
equivalent for services rendered to navigation’’ were 
permitted to be levied by the international commission, 
and the kinds of taxes and duties were specified (arts. 
13-16 of the final act, 7b., pp. 300, 301). 

The provisions of the final act concerning the consti- 
tution and powers of the international commission of 
navigation, strictly as such, are contained in articles 
17 to 21, and are as follows (2b., pp. 301-303) : 


ArT. 17. An international commission shall be created 
which shall be charged with the execution of the present 
act of navigation. The signatory powers of this act, as 
well as those who may subsequently adhere to it, may 
always be represented on the said commission each by one 
delegate. But no delegate shall have more than one vote, 
even in the case of his representing several governments. 
This delegate will be directly paid by his government. As 
for the various agents and employees of the international 
commission, their compensation shall be deducted from the 
amount of dues collected, according to paragraphs 2 and 3 
of article14. The amount of the said compensation, as well 
as the number, grade, and powers of the agents and employ- 
ees, shall be entered in the returns to be sent yearly to the 
Governments represented in the international commission. 


The Middle-African Zone 275 


ArT. 18. The members of the international commission, 
as well as its appointed agents, are invested with the privi- 
lege of inviolability in the exercise of their functions. The 
same guarantee shall apply to the offices and archives of 
the commission. 

ArT. 19. The international commission for the navigation 
of the Congo shall be constituted as soon as five of the sig- 
natory powers of the present general act shall have ap- 
pointed their delegates. Pending the constitution of the 
commission, the appointment of these delegates shall be 
notified to the Imperial Government of Germany, which 
shall see to it that the necessary steps are taken to summon 
the meeting of the commission. The commission shall at 
once draw up navigation, river police, pilot, and quarantine 
rules. These rules, as well as the tariffs to be framed by the 
commission, shall, before coming into force, be submitted 
for approval to the powers represented in the commission. 
The powers interested shall communicate their views with 
as little delay as possible. Any infringements of these rules 
shall be checked by the agents of the international commis- 
sion wherever it exercises direct authority, and elsewhere by 
the riparian power. In the case of an abuse of power, or of 
an act of injustice, on the part of any agent or employee 
of the international commission, the individual who con- 
siders himself to be aggrieved in his person or rights may 
apply to the consular officer of his country. The latter shall 
examine his complaint, and if he finds it prima facie reason- 
able, he will be entitled to bring it before the commission. 
At his instance, then, the commission, represented by at 
least three of its members, shall, in conjunction with him, 
inquire into the conduct of its agent or employee. Should 
the consular officer look upon the decision of the commission 
as raising questions of law, he will report on the subject to 
his Government, which may then have recourse to the 
powers represented on the commission, and request them to 
agree as to the instructions to be given to the commission. 

ART. 20. The international commission of the Congo, 
charged, according to article 17 with the execution of 


276 The Question of Aborigines 


the present act of navigation, shall, in particular, have 
power— 

1. To decide what works are necessary to secure the 
navigability of the Congo in accordance with the needs of 
international trade. On those sections of the river, where 
no power exercises sovereign rights, the international 
commission shall itself take the measures necessary to 
secure the navigability of the river. On those sections of 
the river held by a sovereign power the international com- 
mission shall concert its action with the riparian authorities. 

2. To fix the pilotage tariff and that of the general navi- 
gation dues as provided for by paragraphs 2 and 3 of article 
14. The tariffs mentioned in the first paragraph of article 
14 shall be framed by the territorial authorities within the 
limits prescribed in the said article. The levying of the vari- 
ous dues shall be under the charge of the international or 
territorial authorities on whose behalf they are established. 

3. To administer the revenue arising from the enforce- 
ment. of the provisions contained in the preceding para- 
graph (2). 

4. To superintend the quarantine establishment created 
in virtue of article 24. 

5. To appoint officials for the general service of naviga- 
tion, and also its own proper employees. It shall be for 
the territorial authorities to appoint subinspectors on sec- 
tions of the river occupied by a power, and for the inter- 
national commission to do so on the other sections. The 
riparian power shall notify to the international commission 
the appointment of subinspectors, and this power shall take 
care that their salaries be paid. In the exercise of its func- 
tions, as above defined and limited, the international com- 
mission shall be independent of the territorial authorities. 

ArT. 21. In the accomplishment of its task, the inter- 
national commission may, if need be, have recourse to the 
war vessels of the signatory powers of this act, and of those 
who may in future accede to it, under the reserve, however, 
of such instructions as may ‘be given to the commanders 
of these vessels by their respective Governments. 


The Middle-African Zone 277 


ART. 22. The war vessels of the signatory powers of this 
act that may enter the Congo are exempt from payment of 
the navigation dues provided for in paragraph 3 of article 
14; but, unless their intervention has been asked for by the 
international commission or its agents, according to the 
preceding article, they shall pay all pilot or harbor dues. 

ART. 23. With the view of providing for the technical 
and administrative expenses which it may incur, the inter- 
national commission created by article 17 may, in its own 
name, negotiate loans to be exclusively guaranteed by the 
revenues assigned to the said commission. The decisions 
of the commission authorizing the conclusion of a loan 
must be reached by a majority of two-thirds. It is under- 
stood that the Governments represented in the commission 
shall not in any case be held as assuming any guaranty, or 
as contracting any engagement or joint liability with respect 
to the said loans, unless under special conventions con- 
cluded by them to this effect. The revenue yielded by 
the dues specified in paragraph 3 of article 14 shall be 
appropriated by way of priority to the payment of the 
interest and sinking fund of the said loans, according to the 
agreements made with the lenders. 

ArT. 24. At the mouth of the Congo there shall be estab- 
lished, either at the initiative of the riparian powers, or 
through the intervention of the international commission, 
a quarantine establishment for the control of vessels passing 
out of as well as into the river. The powers shall subse- 
quently decide whether sanitary control shall be exercised 
over vessels engaged in the navigation of the river itself; 
and if so, in what manner. 

ArT. 25. The provisions of the present act of navigation 
shall remain in force in time of war. Consequently all 
nations, whether neutral or belligerent, shall be always 
free, for purposes of trade, to navigate the Congo, its 
branches, affluents, and mouths, as well as the territorial 
waters fronting the mouths of the river. Traffic shall simi- 
larly remain free, despite a state of war, on the roads, rail- 
ways, lakes, and canals mentioned in articles 15 and 16. 


278 The Question of Aborigines 


There shall be no exception to this principle, except so far 
as concerns the transportation of articles intended for a 
belligerent and considered, in virtue of the law of nations, 
as contraband of war. All the works and establishments 
created in pursuance of the present act, especially the tax 
offices and their treasuries, as well as the permanent service 
staff of these establishments, shall enjoy the benefit of 
neutrality, and shall, therefore, be respected and protected 
by belligerents. 


At the session of the conference on December 18, 
1884, consideration was again given to the proposal of 
the German Government that there should be conferred 
on the international commission a general power of 
surveillance of all action under the provisions of the 
final act. It would appear that the proposal had been 
acted upon unfavorably and privately by the confer- 
ence, but that the idea had received such support that it 
was felt to be necessary that some reference to such a 
general surveillance should be made in the final act. 
This was effected by the German Government itself 
offering a new proposal, in which the substance of the 
original proposal was given up, but which nevertheless 
kept the principle of general surveillance in the final 
act.. The record is as follows (2b., pp. 126, 127): 


The president recalls that the study of the final para- 
graph of the first project of declaration submitted to the 
conference by the Government of Germany . . . had 
been referred to a later epoch, and that the time has come 
to proceed to it. 


Mr. Busch, [delegate of Germany], read, from a newly 
proposed text a revision of this paragraph, as follows: 


In all parts of the territory covered by the present dec- 
laration [where no] power shall exercise rights of sovereignty, 


The Middle-African Zone 279 


the international commission for the navigation of the 
Congo instituted in virtue of the act signed at Berlin the 
, Shall be charged with superintending [chargée 
de surveiller|, the application of the principles proclaimed 
and established by this declaration. In all cases where 
difficulties relative to the application of the principles 
established by the present act shall arise, the interested 
Governments shall [be at liberty to] agree to appeal to the 
good offices of the international commission by [authorizing 
it to make] an examination [into] the facts which [shall] 
have been the occasion of these difficulties. 

Baron de Courcel states that they found in the beginning 
some obscurities in the sense of this paragraph. Since then 
it has been clearly established that the authority attributed 
to the international commission in regard to superintending 
the application of the principles of commercial liberty could 
only be exercised in the territories where no regularly 
established sovereign authority existed. 

The plenipotentiary of France remarked on the other 
hand that the new revision contained a paragraph which 
did not exist in the primitive text, and which had for its 
object to forsee the eventuality of arbitration, simply volun- 
tary and optional, in view of which the Governments would 
appeal to the good offices of the international commission. 
Baron de Courcel adheres to this arrangement, which he 
thinks may be fruitful. 

Sir Edward Malet is of the same opinion as the ambassa- 
dor of France. 

Baron Lambermont [plenipotentiary of Belgium] observes 
that the first paragraph of the text under discussion affirms, 
on behalf of the international commission, a right of super- 
vision relative to the application of certain principles in the 
regions where no constituted authority exists. He asks 
upon whom falls this application which the international 
commission should supervise. 

Mr. Busch, [delegate of Germany], replies that the ques- 
tion is of the application of the régime of commercial 
liberty by the aboriginal chiefs. 


280 The Question of Aborigines 


Mr. de Kusserow, [delegate of Germany], thought it proper 
to insert in the first paragraph the words “or protectorate”’ 
between the words ‘‘sovereignty”’ and the words “‘the inter- 
national commission.” 

The conference adheres to this modification. 

The whole of the final paragraph was then adopted. 


The article agreed upon appears in the final act, as 
one of the articles of the declaration concerning freedom 
of commerce, and is as follows: 


Article VIII. In all parts of the territory had in view by 
this present declaration, where no power shall exercise 
rights of sovereignty or protectorate, the International 
Navigation Commission of the Congo, instituted in virtue 
of Article 17, shall be charged with the supervision (chargée 
de survetller) the application of the principles proclaimed 
and perpetuated by this declaration. In all cases of differ- 
ence relative to the application of the principles established 
by the present declaration, the Governments concerned 
may agree to appeal to the good offices of the international 
commission by requesting it to examine the matters that 
may have occasioned such difficulties. 


As it was not likely that there would long remain in 
the international zone any place which would not be 
under the sovereignty or protectorate of a civilized 
State, and as the whole zone was soon effectively placed 
under civilized sovereignty, the right of surveillance 
delegated to the International Commission of Naviga- 
tion was of no effect. Its action in adjusting disputes 
between the States exercising sovereignty was depend- 
ent upon the willingness of both or all disputants to 
appeal to its good offices. 

As to the meaning which the Conference attached to 
the word surveillance, which the English text translates 
as “‘supervision,’”’ reference may be made to the report 


~The Middle-African Zone 281 


of the commission regarding the article which now 
appears as article 20 of the final act. Speaking of the 
provision which authorizes the commission to superin- 
tend the quarantine establishment, etc. (which in the 
original French version reads /a surveillance de l établisse- 
ment quarantenatre, etc.), the committee said (2b., p. 99): 


For the quarantine, for whose establishment at the 
mouth of the river provision is made, the term ‘‘control’’ 
has been replaced by that of “‘surveillance,”’ which implies 
a less extended intervention. 


An agreement for surveillance apparently would not 
have authorized any action beyond that of ascertaining 
the facts concerning the administration of the law, 
offering suggestions in the nature of conciliatory advice, 
and making reports to all the civilized States. 

The attempt to establish a surveillance of the inter- 
national zone for the purpose of rendering the coopera- 
tive action of the States exercising sovereignty within 
its borders harmonious and effective, thus resulted only 
in a virtual failure, as did the attempt to neutralize the 
region. The compromise measures adopted on both 
these subjects, however, have kept the question alive. 
That neutralization of an international zone, and in- 
ternational surveillance over it, are necessary to secure 
the effective carrying out of the international coopera- 
tive agreements of the States exercising sovereignty 
within the zone, is evident. The compromise measures 
adopted by the conference in this respect will no doubt 
serve in some future African conference as bases for 
developing this middle African zone of international 
jurisdiction into an effective political organization for 
assuring the proper guardianship of the aborigines and 
for maintaining the ‘‘open door’’ to the civilizing ac- 
tivities of the people of all civilized States. 


CHAPTER XIII 


INTERNATIONAL ACTION SINCE THE BERLIN AFRICAN 
CONFERENCE, AFFECTING THE LAW OF NATIONS 
REGARDING ABORIGINES 


N January 5, 1885, while the Berlin African Con- 
ference was in session, the House of Represen- 
tatives adopted a resolution requesting the 

President to furnish it with information concerning the 
conference. Inresponse, the President, on January 30, 
1885, sent to the House a message inclosing a report 
to the Secretary of State containing a statement of 
the circumstances leading up to the conference and the 
action taken up to that time. (See 48th Cong., 2d 
sess., H. R., Ex. Doc. No. 156, Jan. 30, 1885.) 

On February 5, 1885, the House adopted a resolu- 
tion requesting to be furnished with copies of all com- 
munications received concerning the conference and of 
the instructions given to the United States delegates. 
In response, the President, by message of February 19, 
1885, transmitted a report of the Secretary of State 
containing the copies desired, which contained the pro- 
ceedings of the conference to January 7, 1885, and com- 
munications up to February 17, 1885. (See 48th Cong., 
2d sess., H. R., Ex. Doc. No. 247, Feb. 19, 1885.) 

On the last day of the Forty-eighth Congress, March 
3, 1885, eight days after the final adjournment of the 
conference, the House Committee on Foreign Affairs 
presented a report as follows: 

282 


International Action Since 1885 283 


Your committee has given to the messages of the Presi- 
dent relative to the participation of representatives of the 
Government of the United States in the so-called Congo 
conference the grave consideration to which the subject 
is entitled. While not unmindful of the conspicuous part 
American enterprise, energy, and skill has taken in the 
development of Africa, your committee is of the opinion 
that if such action is acquiesced in, without protest on the 
part of the legislative branch of the Government, it might 
become the beginning of a new departure in the foreign 
policy of the United States and might engraft upon the 
peaceful precedents of our diplomacy a precedent liable to 
become pregnant with foreign discord and domestic unrest. 

From the information on the subject which has been 
communicated to this committee, it is impossible to pre- 
cisely ascertain the purposes of the conference and the 
conclusions it has reached. Your committee has given 
serious consideration to the subject, with a due regard to 
the gravity of a new departure from the history and tradi- 
tions of this Government, and to the uniform absence of 
any representation of our Government in the deliberation 
of European conflicts and interests, and especially all con- 
ferences of European nations which might lead to disturb- 
ances in foreign nations and affecting the settlement of 
questions in which this Government has no interest. 

Your committee, in the light of all the knowledge in its 
possession, can only express the opinion that they can find 
no sufficient reason for the participation of the Government 
of the United States in the Congo conference, and for a 
departure from the established political doctrines and policy 
of this Government from its formation, and therefore con- 
fine themselves to declaring that they can not approve of 
the fact that our Government was at all represented at the 
Congo conference, and recommend the House to adopt the 
following resolution: 

‘Resolved, That no prospect of commercial advantage 
warrants a departure from the traditional policy of this 
Government which forbids all entangling alliances with the 


284. The Question of Aborigines 


nations of the Old World; and that the participation of the 
delegates of the United States in the so-called Congo con- 
ference, while carefully guarded—as your committee is 
informed—in the purpose to confine their powers to the con- 
sideration of commercial interests exclusively, is unfortunate 
in so far as it is a departure from the policy which forbids 
the Government of the United States to participate in any 
political combination or movement outside of the American 
continent.’”’ (48th Cong., 2d sess., H. R. Rept. No. 2655, 
Feb. 28, 1885.) 


This report was referred to the House Calendar and 
ordered to be printed. (Cong. Rec., 48th Cong., 2d 
sess., p. 2571, Mar. 3, 1885.) 

In the message of President Cleveland to Congress 
of December 8, 1885, it was said: 


A conference of delegates of the principal commercial 
nations was held at Berlin last winter to discuss methods 
whereby the Congo Basin might be kept open to the world’s 
trade. Delegates attended on behalf of the United States 
on the understanding that their part should be merely 
deliberative, without imparting to the results any binding 
character as far as the United States were concerned. This 
reserve was due to the indisposition of this Government to 
share in any disposal by an international congress of juris- 
dictional questions in remote foreign territories. The results 
of the conference were embodied in a formal act of the 
nature of an international convention, which laid down 
certain obligations purporting to be binding on the signa- 
tories, subject to ratification within one year. Notwith- 
standing the reservation under which the delegates of the 
United States attended, their signatures were attached to 
the general act in the same manner as those of the plenipo- 
tentiaries of other Governments, thus making the United 
States appear, without reserve or qualification, as signa- 
tories to a joint international engagement imposing on the 


International Action Since 1885 285 


signers the conservation of the territorial integrity of distant 
regions where we have no established interests or control. 

This Government does not, however, regard its reserva- 
tion of liberty of action in the premises as at all impaired; 
and holding that an engagement to share in the obligation 
of enforcing neutrality in the remote valley of the Congo 
would be an alliance whose responsibilities we are not in a 
position to assume, I abstain from asking the sanction of 
the Senate to that general act. (Cong. Rec., 49th Cong., 
Ist Sessi,;p. 110;) 


On January 14, 1886, in the Senate, Senator Morgan 
offered a resolution, to which was attached a copy of 
the Berlin African act, apparently in the French origi- 
nal, and by the terms of which the act was to be re- 
ferred to the Committee on Foreign Relations, and to 
be translated under the direction of the committee and 
printed; the part of the President’s message relating to 
the subject to be also referred to the committee. The 
resolution was at once adopted. (Cong. Rec., 49th 
Cong., Ist sess., p. 643.) 

In speaking on his resolution Senator Morgan stated 
that, in his belief, there had been ‘‘a misapprehension 
or misinterpretation of this act on the part of the 
United States,” and described the final act of the con- 
ference as “‘a great and general act, the benefits of 
which no doubt will be felt by generations of men 
through years to come.”’ 

He asserted the entire freedom of the United States 
as respects ratification, saying: 


Notwithstanding the very great advantages which would 
inure [from the Berlin African act] to the people of any 
commercial nation who should visit that country for the 
purposes of trade, neither the preceding administration nor 
the minister of the United States who was at Berlin con- 


286 The Question of Aborigines 


sidered that the Government of the United States had 
given its consent in any way at all to become a party to 
the agreement as an engagement. A mere declaration has 
been submitted to the judgment of the enlightened world 
by this great conference upon this very important topic and 
in regard to this very important country; and the question 
whether we shall accede to that agreement is one that is 
entirely a matter of option on our part. 


Concerning the manner of ratification, Senator Mor- 
gan, in the same speech, expressed the following 
opinion: 


It [the accession of the United States to the final act of 
the Congo conference] is something that need not be trans- 
acted even through the diplomatic channels of the Govern- 
ment. An act of Congress originated by any Member of 
this body, or of the other House, which should declare that 
the Government of the United States adheres to or accedes 
to that agreement would make us a party to it precisely 
as it does to postal conventions and various other conven- 
tions of that kind which have been agreed upon by other 
nations and to which we have the right to accede if we 
choose or to withhold our concession if we please. Jb., p. 


644.) 


On the same day (Jan. 14, 1886) the Senate referred 
to the Committee on Foreign Relations all those parts 
of the President’s message relating to foreign affairs. 
The year allowed for ratification expired on February 
26, 1886, without any action having been taken by 
the United States as respects the ratification of the 
final act of the conference. (J0., p. 644.) 

Although the Berlin African act made no express 
provision for the adherence or ratification of any State, 
which, after signing the act, should fail to ratify within 
the year, this matter had been informally considered 


International Action Since 1885 287 


at the session of the conference on January 31. At the 
meeting of the signatory powers other than the United 
States, to exchange ratifications, held at Berlin on 
April 19, 1886, it was agreed that the United States 
might adhere to the act at any time, “in the manner 
and with the effect provided in article 37.’’ This ar- 
ticle authorized the adhesion of non-signatory powers 
and provided that adhesion should “involve full ac- 
ceptance of all the obligations as well as admission to 
all the advantages stipulated for by the present gen- 
eral act.’’ It would appear to have been the under- 
standing that, by such adhesion, the United States, 
as a signatory power, would be in the same position as 
if it had ratified the convention within the time allowed. 
COM pies 2521 303) 323, ) 

On April 28, 1886, evidently for the purpose of plac- 
ing in print for possible future action the material in 
the hands of the Government relating to the conference, 
the Senate Committee on Foreign Affairs reported a 
resolution requesting the President to give full infor- 
mation concerning the conference, which was at once 
adopted. The President, in response to this request, 
sent a message to the Senate on June 30, 1886, inclosing 
a report from the Secretary of State containing the 
proceedings of the conference and all accompanying 
documents. The report was referred to the Committee 
on Appropriations and ordered to be printed. (b., 
p. 6316.) 

It appears that no further action has ever been taken 
by the United States with reference to the ratification 
of or adherence to the Berlin African act. 

During 1884 and 1885 the British Government 
opened negotiations with all the powers interested in 
the western Pacific islands for a conference to concert 
regulations and measures relating to the importation 


288 The Question of Aborigines 


of firearms and intoxicants into the islands so as to 
prevent abuses of them by the natives. On April I1, 
1885, Secretary of State Bayard wrote to the British 
ambassador, Mr. Sackville West, as follows: 


I have had the honor to receive your note of the 6th 
instant, in which you refer to the correspondence heretofore 
exchanged on the subject of the supply of arms and ammu- 
nition to the natives of the western Pacific islands, and 
inform me that all the powers interested have now given a 
general assent to the suggestion for an international agree- 
ment for the settlement of this question, with the excep- 
tion of the United States, in view of which Lord Granville 
has instructed you to press for an early communication of 
the views of this Government in the premises. 

Whilst recognizing and highly approving the moral force 
and general propriety of the proposed regulations and the 
responsibility of conducting such traffic under proper and 
careful restrictions, the Government of the United States 
does not feel entirely prepared to join in the international 
understanding proposed, and will, therefore, for the present, 
restrain its action in the direction outlined by the suggested 
arrangement of a sound discretion in permitting traffic 
between its own citizens in the articles referred to and the 
natives of the western Pacific islands. 


This action was taken by the United States a few 
weeks after the close of the Berlin African Conference, 
and at the time when strong objections were being 
made in Congress to the ratification of the Berlin act. 
A renewal of this proposition made by Great Britain to 
the United States in 1887 was declined by the United 
States. (Brit. Parl. Papers, 1887, vol. 58, Cd. 5240. 
Western Pacific; correspondence relating to proposals 
for an international agreement, etc.) 

The Institute of International Law, at its session held 
at Lausanne, in 1888, considered the question of the 


International Action Since 1885 289 


conditions with regard to occupation which ought to 
be fulfilled by a civilized State in order to enable it to 
obtain a good title in international law to the sover- 
eignty over the region occupied byit. Incidentally con- 
sideration was also given to the question of the rela- 
tions which the occupying State ought to hold, under 
the law of nations, both at the time of occupation and 
afterwards, toward the aboriginal tribes inhabiting the 
region. The deliberations of the Institute (Annuaire, 
vol. 10 (1888-89), pp. 173-201) resulted in the adoption 
of the following declaration of the views held by it: 


ARTICLE I. The occupation of a territory under title of 
sovereignty can be recognized as effective only in case it 
fulfills the following conditions: 

I. The taking of possession of a territory comprised 
within certain limits, the act being done in the name of the 
Government; 

2. The official notification of the taking of possession. 
The taking of possession is to be effected by the establish- 
ment of a local responsible government provided with means 
sufficient for maintaining order and assuring the regular 
exercise of its authority within the limits of the occupied 
territory. These means may be borrowed from the insti- 
tutions existing in the occupied country. The notification 
of the taking of possession is made either by publication 
in the form used by each State for notification of its official 
acts, or through diplomatic channels. It will contain an 
approximate determination of the limits of the territory 
occupied. 

Art. II. The rules stated in the above article are appli- 
cable to the case where a power, without assuming the entire 
sovereignty of a territory, and maintaining with or without 
restrictions the administrative autonomy of the aboriginal 
tribes, shall place the territory under its ‘‘ protectorate.”’ 

Art. III. If the taking of possession shall give rise to 
claims founded on anterior titles, and if the ordinary diplo- 


TQ 


290 ‘The Question of Aborigines 


matic procedure shall not lead to an agreement between 
the parties interested, they will appeal to the good offices, 
the mediation, or the arbitration of one or several third 
powers. 

Art. IV. All wars of extermination of aboriginal tribes, 
all useless severities, and all tortures are forbidden, even by 
way of reprisals. 

ArT. V. In the territories had in view by the present 
declaration, the local authority will respect or will cause to 
be respected all rights, especially of private property, as 
well of the aborigines as of foreigners, and including both 
individual and collective rights. 

ArT. VI. The local authority has the duty of watching 
over the conservation of the aboriginal populations, their 
education, and the amelioration of their moral and material 
condition. It will favor and protect, without distinction 
of nationality, all the private institutions and enterprises 
created and organized for this purpose, under the reserve 
that the political interests of the occupying or protecting 
State shall not be compromised or menaced by the actions 
or tendencies of these institutions and enterprises. 

Art. VII. Liberty of conscience is guaranteed to the abo- 
rigines, as well as to the nationals of the colonizing State, 
and to foreigners. The exercise of all the forms of religious 
faith shall not be subjected to any restriction or hindrance; 
provided, however, that practices contrary to the laws of 
morality and of humanity shall be prohibited. 

ArT. VIII. The local authority shall make preparations 
for the abolition of slavery. The sale or the employment 
of slaves for domestic service, by others than aborigines, 
shall be immediately forbidden. 

ArT. IX. The slave trade shall be forbidden in the whole 
extent of the territories had in view by the present decla- 
ration. These territories shall not be used as markets, nor 
ways of transit, for the sale of slaves; and the most rigor- 
ous measures shall be taken against those who engage in 
the traffic or are interested in it. The introduction 
and the internal commerce in cangues and other instru- 


International Action Since 1885 291 


ments of torture for use by proprietors of slaves shall be 
prevented. 

ArT. X. The sale of intoxicating liquors shall be regulated 
So as to preserve the aboriginal populations from the evils 
resulting from their abuse. 


(Cf. Resolutions of the Institute of International 
Law dealing with the Law of Nations, edited by James 
Brown Scott, pp. 84-86.) 

The following propositions were brought before the 
Institute, but failed to receive its approval (Annuaire, 
vol. 10, pp. 171-201): 

That aboriginal tribes and the territory inhabited by 
them are outside ‘‘the community of the law of nations’’ 
(pp. I7I-181). 

That occupation by a civilized State of territory in 
Africa not occupied by any other civilized State ought 
to have as its basis arrangements with the chiefs of 
the aboriginal tribes (pp. 181, 182). 

That “sovereignty”? over aboriginal tribes is a rela- 
tionship differing from ‘‘protectorate’”’ in character and 
not merely in form (pp. 184, 185, 189, 190). 

That the aborigines as well as the European colonists 
should be prohibited from holding aborigines in domes- 
tic slavery (p. 195). 

That countries inhabited by aboriginal tribes under 
the sovereignty of a civilized State should be submit- 
ted to the régime of the Universal Postal Union (p. 
198). 

That in all such countries there should be equality 
of rights of trade and intercourse for all nations on 
the land and of navigation on navigable rivers (p. 
199). ia 

That the countries under the sovereignty of civilized 
States whose title has been obtained by occupation 


292 The Question of Aborigines 


should have the faculty of being declared neutral by 
the State exercising the sovereignty—the neutrality to 
be permanent or temporary—in which case all the 
States should be bound to respect the neutrality; that 
in case war should arise outside these countries and a 
State which had so declared neutrality for its colonies 
should be involved, all the other States should exercise 
their good offices to have the neutrality maintained; 
and that, in case of disputes occurring between States 
concerning or originating in colonies, the parties should 
submit to mediation or arbitration before entering upon 
hostilities (pp. 200, 201). 

On June 14, 1889, shortly before the Brussels African 
Conference met, the United States, Germany, and 
Great Britain, after conferences at Washington and 
Berlin, concluded a convention for a joint control over 
the interests of these powers in the Samoan Islands. 
By this convention it was declared: 


That the islands of Samoa are neutral territory in which 
the citizens of the three signatory powers have equal rights 
of residence, trade, and personal protection. The three 
powers recognize the independence of the Samoan Govern- 
ment and the free right of the natives to elect their chief 
or king and choose their form of government according to 
their own laws and customs. Neither of the powers shall 
exercise any separate control over the islands or the gov- 
ernment thereof. 


The convention provided that the joint control was 
to be exercised by a chief justice of Samoa ‘‘named ty 
the signatory powers in common accord,’’ to whom was 
delegated ‘“‘jurisdiction of all questions arising under 
this general act.’’ By the convention the future aliena- 
tion of land without the consent of the chief justice 
was forbidden, with certain exceptions, and a land com- 


International Action Since 1885 293 


mission to settle previous claims was constituted. The 
chief executive magistrate of Apia, appointed by agree- 
ment of the powers, and the consuls of the signatory 
powers in Apia were given control of European interests 
of a private character. The importation of arms and 
ammunition was forbidden, subject to the right of the 
Samoan Government to import arms for maintaining 
order. A provision of the convention prohibited the sale, 
gift, or offer of intoxicants to any native Samoan or any 
South Sea Islander resident in Samoa. Samoa was to 
assent to the convention, and the convention was to 
be amendable by request of either power after three 
years. 

The plenipotentiaries of the three powers which en- 
tered into the Samoan convention were the same who 
had represented them at the Berlin African Conference 
—Mr. Kasson, for the United States; Sir Edward Malet, 
for Great Britain; and Prince Bismarck, for Germany. 
The States represented by these three distinguished 
diplomats and statesmen, on their advice, entered into 
this arrangement, converting the Samoan Islands into 
an international reservation under an international con- 
trol participated in equally by the three powers. The 
experiment proved the impracticability of such an ar- 
rangement. The colonists would not submit to the tri- 
partite sovereignty, and the civil wars of the Samoan 
aborigines growing out of their disagreements over the 
election of their chief further complicated the situation. 
The arrangement was abolished in 1900. Great Britain 
withdrew from the islands, receiving compensation 
elsewhere, and Germany and the United States par- 
titioned the islands into regions under their separate 
sovereignty; the United States receiving Tutuila in the 
partition. The application of the principle of joint in- 
ternational control of contiguous or adjacent colonies 


204 The Question of Aborigines 


inhabited by aboriginal tribes, instead of the principle 
of separate national control under joint international 
surveillance, has by some been regarded as the cause 
of the failure of this experiment. 

The Brussels African Conference was convened, as 
stated in the preamble of the final act, at the invitation 
of the Belgian Government, in agreement with the 
British Government. The following 17 states partici- 
pated in the conference: Great Britain, France, Ger- 
many, Italy, Spain, Belgium, Holland, Portugal, the 
United States, Russia, Austria-Hungary, Denmark, 
Sweden and Norway, Turkey, Persia, the Independent 
State of the Congo, and Zanzibar. The sessions of the 
conference began on November 18, 1889, and were 
continued, with various intermissions, until July 2, 
1890, when the final act was signed. 

The conference was convened in response to a world- 
wide demand for international protection of the African 
aborigines, based on revelations of the inhumanities 
practiced in the aboriginal regions of Africa in the 
prosecution of the slave trade, of the degeneration of 
the aborigines through the use of intoxicating liquors, 
and of the anarchy and destruction caused by their 
ownership of firearms. Slave trading, though almost 
ended on the sea, still continued in the Indian Ocean, 
and further measures for the prevention of the traffic 
within this maritime area were necessary. The trade 
carried on within Africa, it was evident, could be 
stopped only by the unanimous cooperation in repres- 
sive measures of all the powers exercising sovereignty 
or influence in the regions inhabited by aboriginal 
tribes. The supply of alcoholic liquors and firearms to 
the aborigines could be prevented only by the unani- 
mous cooperation of all the civilized States trading 
with Africa in restricting importation of these instru- 


International Action Since 1885 295 


ments of degeneration and destruction, coupled with 
the unanimous cooperation of all the States exercising 
sovereignty or influence over the aboriginal tribes with- 
in the territory of Africa and of the States and self- 
governing colonies of European settlement bordering 
upon these territories, in restricting or prohibiting the 
manufacture and distribution of these articles. Thus 
the questions under consideration involved, to some 
extent, international jurisdiction and surveillance of the 
whole continent of Africa. The problems which had 
been insoluble to the Berlin African Conference, which 
was confined to a consideration and application of the 
principles of common international use to the Rivers 
Congo and Niger, of common international commerce 
to the basin of the Congo, and of acquisition of sover- 
eignty by civilized States by occupation of territory 
inhabited by aboriginal tribes on the west coast of 
Africa, were to be solved by a conference dealing with 
Africa as a whole, considered as a region to some 
extent under international jurisdiction. 

In the preamble of the Brussels African act the mo- 
tives and objects of the contracting powers were thus 
stated: 


Being equally actuated by the firm intention of putting 
an end to the crimes and devastation engendered by the 
traffic in African slaves, of efficiently protecting the abo- 
riginal population of Africa, and of securing for that vast 
continent the benefits of peace and civilization; 

Wishing to give fresh sanction to the decisions already 
adopted in the same sense and at different times by the 
powers, to complete the results secured by them, and to 
draw up a body of measures guaranteeing the accomplish- 
ment of the work which is the object of their common 
solicitude, have resolved . . . to convene for this purpose 
a conference at Brussels, etc. 


296 The Question of Aborigines 


In the body of the act, the following general prin- 
ciples were declared as those which the powers were to 
adopt and cause to be adopted: 


ARTICLE I. The powers declare that the most effective 
means of counteracting the slave trade in the interior of 
Africa are the following: 

1. Progressive organization of the administrative, ju- 
dicial, religious, and military services in the African terri- 
tories placed under the sovereignty or protectorate of 
civilized nations. 

2. The gradual establishment in the interior, by the 
powers to which the territories are subject, of strongly 
occupied stations, in such a way as to make their protective 
or repressive action effectively felt in the territories dev- 
astated by slave hunting. 

3. The construction of roads, and in particular of rail- 
ways, connecting the advanced stations with the coast, and 
permitting easy access to the inland waters, and to such of 
the upper courses of the rivers and streams as are broken 
by rapids and cataracts, with a view to substituting economi- 
cal and rapid means of transportation for the present sys- 
tem of carriage by men. 

4. Establishment of steamboats on the inland navigable 
waters and on the lakes, supported by fortified posts estab- 
lished on the banks. 

5. Establishment of telegraphic lines, insuring the com- 
munication of the posts and stations with the coast and 
with the administrative centers. 

6. Organization of expeditions and flying pian to 
keep up the communication of the stations with each other 
and with the coast to support repressive action, and to 
insure the security of high roads. 

7. Restriction of the importation of firearms, at least 
those of modern pattern, and of ammunition, throughout 
the entire extent of the territory in which the slave trade 
is carried on. 

Art. II. The stations, the inland cruisers organized by 


International Action Since 1885 297 


each power in its waters, and the posts which serve as 
ports of register for them all, shall independently of their 
principal task, which is to prevent the capture of slaves and 
intercept the routes of the slave trade, having the following 
subsidiary duties: 

1. To support and, if necessary, to serve as a refuge for 
the native population, whether placed under the sovereignty 
or the protectorate of the State to which the station is 
subject, or independent, and temporarily for all other 
natives, in case of imminent danger; to place the popula- 
tion of the first of these categories in a position to cooperate 
for their own defense; to diminish intestine wars between 
tribes by means of arbitration; to initiate them in agri- 
cultural labor and the industrial arts so as to increase their 
welfare; to raise them to civilization and bring about the 
extinction of barbarous customs, such as cannibalism and 
human sacrifices. 

2. To give aid and protection to commercial enterprises; 
to watch over their legality . . . especially [by] control- 
ling contracts for service with natives; and to prepare the 
way for the foundation of permanent centers of cultivation 
and of commercial settlements. 

3. To protect, without distinction of creed, the mis- 
sions which are already or that may hereafter be estab- 
lished. 

4. To provide for the sanitary service and to extend hos- 
pitality and help to explorers and to all who take part in 
Africa in the work of repressing the slave trade. 


By articles 3 and 4 the powers “exercising a sover- 
eignty or a protectorate in Africa’ confirmed their 
previous obligations, individually and collectively, to 
abolish the slave trade and agreed to hold themselves 
responsible in this respect for companies chartered 
by them, and to aid and protect private associations 
and enterprises organized for repression of the slave 
trade. 


298 The Question of Aborigines 
The next article was as follows: 


Art. V. The contracting powers pledge themselves, un- 
less this has already been provided for by laws in accord- 
ance with the spirit of the present article, to enact or 
propose to their respective legislative bodies, in the course of 
one year at the latest from the date of the signing of the 
present general act, a law rendering applicable, on the one 
hand, the provisions of their penal laws concerning grave 
offences against the person, to the organizers and abettors 
of slave hunting, and to those guilty of mutilating male 
adults and children, and to all persons taking part in the 
capture of slaves by violence; and, on the other hand 
the provisions relating to offences against individual liber- 
ty, to carriers and transporters of, and to dealers in, 
slaves. 

The accessories and accomplices of the different categories 
of slave captors and dealers above specified shall be pun- 
ished with penalties proportionate to those incurred by the 
principals. 

Guilty persons who may have escaped from the jurisdic- 
tion of the authorities of the country where the crimes or 
offences have been committed shall be arrested either on 
communication of the incriminating evidence by the au- 
thorities who have ascertained the violation of the law, or on 
production of other proof of guilt by the power in whose 
territory they may have been discovered, and shall be 
kept, without other formality, at the disposal of the tribu- 
nals competent to try them. 

The powers shall communicate to one another, with the 
least possible delay, the laws or decrees existing or promul- 
gated in execution of the present article. 


By articles 8 to 14 the importation of firearms was 
prohibited, within a specified zone, for a period of 12 
years, subject to renewal. It was recited that ‘‘the 
experience of all nations’ had “‘clearly proved that the 


International Action Since 1885 299 


preservation of the African population, whose existence 
it is the express wish of the powers to protect, is a radis 
cal impossibility if measures restricting the trade in 
firearms and ammunition are not adopted.’’ The zone 
within which these restrictions were to be applied was 
thus described in article 8: 


The territories comprised between the twentieth parallel 
of north latitude and the twenty-second parallel of south 
latitude, and extending westward to the Atlantic Ocean 
and eastward to the Indian Ocean and its dependencies, 
including the islands adjacent to the coast within 100 
nautical miles from the shore. 


This zone thus included a Middle Africa, according 
to the widest interpretation of the term, extending from 
the Moorish and Arabic settlements in the north, under 
the sovereignty or protectorate of the civilized powers, 
to the South African States and British colonies. 

By articles 90 to 95 the prohibition or regulation of 
the importation of and traffic in intoxicating liquors 
within this same zone was agreed to by the signatory 
powers; the prohibition to be put in force wherever the 
use of distilled liquors should not have been developed, 
or where the religion of the natives enjoined disuse, and 
a uniform import and excise duty being established as 
respects the regions where liquors were used by the 
natives; the arrangement regarding duties and excises 
being subject to revision at specified periods. 

It was realized in the conference that the effective- 
ness of the final act would largely depend upon the 
provisions made for surveillance of its operation and 
execution, and the general recognition of this necessity 
led to the insertion in the final act of provisions for a 
qualified surveillance, which were as follows: 


300 The Question of Aborigines 


CHAPTER V. INSTITUTIONS INTENDED TO INSURE THE 
EXECUTION OF THE GENERAL ACT 


SECTION I.—OF THE INTERNATIONAL MARITIME OFFICE 


Art. LXXIV. In accordance with the provisions of 
Article X XVII, an international office shall be instituted 
at Zanzibar, in which each of the signatory powers may be 
represented by a delegate. 

ArT. LXXV. The office shall be constituted as soon as 
three powers have appointed their representatives. It 
shall draw up regulations fixing the manner of exercising 
its functions. These regulations shall immediately be sub- 
mitted to the approval of such signatory powers as shall 
have signified their intention of being represented in this 
office. They shall decide in this respect within the shortest 
possible time. 

ArT. LXXVI. The expenses of this institution shall be 
divided in equal parts among the signatory powers men- 
tioned in the preceding article. 

ArT. LXXVII. The object of the office at Zanzibar shall 
be to centralize all documents and information of a nature 
to facilitate the repression of the slave trade in the maritime 
zone. For this purpose the signatory powers engage to 
forward within the shortest time possible: 

1. The documents specified in Article XLI; 

2. Summaries of the reports and copies of the minutes 
referred to in Article XLVIII; 

3. The list of the territorial or consular authorities and 
special delegates competent to take action as regards vessels 
seized according to the terms of Article XLIX; 

4. Copies of judgments and condemnations in accordance 
with Article LVIII; 

5. All information that may lead to the discovery of 
persons engaged in the slave trade in the above-mentioned 
zone. 

ArT. LXXVIII. The archives of the office shall always 
be open to the naval officers of the signatory powers author- 


International Action Since 1885 301 


ized to act within the limits of the zone defined by Article 
XXI, as well as to the territorial or judicial authorities, 
and to consuls specially designated by their Governments. 

The office shall supply to foreign officers and agents 
authorized to consult its archives translations into a Euro- 
pean language of documents written in an Oriental language. 

It shall make the communications provided for in Article 
XLVIII. 

ArT. LXXIX. Auxiliary offices in communication with 
the office at Zanzibar may be established in certain parts 
of the zone, in pursuance of a previous agreement between 
the interested powers. 

They shall be composed of delegates of these powers, and 
established in accordance with Articles LXXV, LXXVI, 
and LXXVIII. 

The documents and information specified in Article 
LXXVII, so far as they may relate to a part of the zone 
specially concerned, shall be sent to them directly by the 
territorial and consular authorities of the region in ques- 
tion, but this shall not exempt the latter from the duty of 
communicating the same to the office at Zanzibar, as 
provided by the same article. 

ArT. LXXX. The office at Zanzibar shall prepare in the 
first two months of every year a report of its own operations 
and of those of the auxiliary offices during the past 12 
months. 


SECTION II. OF THE EXCHANGE BETWEEN THE GOVERNMENTS 
OF DOCUMENTS AND INFORMATION RELATING TO THE 
SLAVE TRADE 


Art. LXXXI. The powers shall communicate to one 
another, to the fullest extent and with the least delay that 
they shall consider possible: 

1. The text of the laws and administrative regulations, 
existing or enacted by application of the clauses of the 
present general act; 

2. Statistical information concerning the slave trade, 


302 ~The Question of Aborigines 


slaves arrested and liberated, and the traffic in firearms, 
ammunition, and alcoholic liquors. 

ArT. LXXXII. The exchange of these documents and 
information shall be centralized in a special office attached 
to the foreign office at Brussels. 

ArT. LXXXIII. The office at Zanzibar shall forward to 
it every year the report mentioned in Article LX XX, con- 
cerning its operations during the past year, and concerning 
those of the auxiliary offices that may have been established 
in accordance with Article LX XIX. 

ArT. LXXXIV. The documents and information shall 
be collected and published periodically, and addressed to 
all the signatory powers. This publication shall be accom- 
panied every year by an analytical table of the legislative, 
administrative, and statistical documents mentioned in 
Articles LXXXI and LXXXIII. 

ArT. LXXXV. The office expenses as well as those in- 
curred in correspondence, translation, and printing, shall 
be shared by all the signatory powers, and shall be collected 
through the agency of the department of the foreign office 
at Brussels. 


When the question of surveillance was pending before 
the conference, a project for surveillance of a more spe- 
cific kind was introduced by the British Government. 
The British proposition was regarded by the French 
Government as unsuitable for immediate adoption, but 
possibly suitable to be adopted at a later period in the 
development of Africa. It was thereupon agreed that 
though the committee on editing should recommend to 
the conference the plan of qualified surveillance which 
appears in the final act, it should carefully revise the 
British project so as to give it a form acceptable to the 
conference as a project for future adoption, and that 
the ‘project should be spread upon the record of the 
proceedings accompanied by a resolution expressing 
approval of it by the conference and declaring its opin- 


International Action Since 1885 303 


ion that at a future time, when the situation should 
permit, the plan of surveillance should be put in force 
by international accord. The opposition to the more 
extended plan of surveillance having been voiced by 
France, M. Bourée, the French plenipotentiary, also 
voiced the sentiment of the conference in favor of 
agreeing upon a plan for a more specific surveillance 
and recommending it for future adoption. In speaking 
upon the subject on behalf of the French Government 
he said that he considered that it would be best not to 
establish immediately such a surveillance as the project 
proposed, but rather ‘“‘to make this project the object 
of a favorable opinion (voeu) inserted in the proceedings 
of the conference, reserving for the subsequent deter- 
mination of the powers the choice of the moment for 
putting the plan into execution.” ‘‘When that moment 
should arrive,’ he said, ‘‘the Governments would find 
at hand a system already prepared, which would reflect 
faithfully the views of the conference on this subject.”’ 
(French Yellow Book, Proceedings of the Brussels 
African Conference, 1890, pp. 262, 278, 279.) 

At the session of the conference on May 22, 1890, the 
president, Baron Lambermont of Belgium, called at- 
tention to the arrangement made in the committee, 
and accordingly the project was read and inserted in 
the proceedings. 

The project thus perpetuated by being spread upon 
the records of the conference was as follows: 


1. There shall be established at Brussels an international 
bureau which shall have as its function the centralizing of 
the exchange between the powers of the documents and 
informative matter mentioned hereinafter, and the use of 
this material as a means of exercising surveillance over the 
execution of the clauses of the present treaty and of the 
measures of amelioration which the treaty contemplates. 


304 The Question of Aborigines 


2. The representatives at Brussels of the signatory pow- 
ers who shall have expressed the desire to participate shall 
constitute, with a representative of Belgium, the council of 
administration of the international bureau. They shall 
hold meetings at least twice each year, in the months of 

. upon the call of the representative of [the King of 
Belgium], for the purpose of receiving and considering the 
analytical statement provided for hereinafter, and the re- 
port concerning the operations of the bureau, and for the 
purpose of approving them in tenor. The organic regula- 
tions concerning the mode of nomination and the salaries 
of the employees of the central bureau, their functions and 
their liability as respects expenses and receipts, as well as 
concerning the measures of execution of article 7, shall be 
made the object of a separate protocol. 

3. The council of administration of the bureau at Brussels 
shall exercise a right of control over the administrative 
and financial operations of the interhational bureau at 
Zanzibar, as well as over the auxiliary agencies. It shall 
approve the organic regulations of the bureau and its 
budget. 

4. The powers will communicate to the bureau to the 
greatest extent and with the least delay possible— 

(a) The text of the laws and administrative regulations 
which now exist or which may be enacted in pursuance of 
the provisions of the present act. 

(>) Information relating to the slave trade, to slaves 
taken from their captors and liberated, and to traffic in 
arms, munitions of war, and alcoholic liquors. 

5. The international bureau established at Zanzibar shall 
cause to be furnished each year the report mentioned in 
the general act regarding its operations during the preceding 
year and those of the auxiliary bureaus which shall be 
established conformably to the act, as well as the statistical 
tables covering the last previous statistical period. 

6. The documents and information shall be collected and 
published in periodical and pamphlet form, and sent to all 
the signatory or adherent powers. This publication will 


International Action Since 1885 305 


be accompanied each year by an analytical exposition of 
the legislative, administrative, and statistical documents 
mentioned above. 

7. The expenses of the central bureau at Brussels shall 
be supported in equal parts by all the powers which shall 
have manifested a desire to be represented in the Council 
of Administration. The expenses shall not exceed — francs 


per year. «(/b., pp. 278,'279.) 


The following resolution on the subject was then 
introduced by the president and adopted: 


The conference, having taken cognizance of the project 
which the commission has prepared, upon the initiative of 
the plenipotentiaries of Great Britain, for the establishment 
of an international bureau to be created at Brussels, with 
functions more extended than those delegated by chapter 
5, paragraph 2, of the general act, in order to permit the 
powers to exercise surveillance over the execution of the 
treaty and to make, when needful, the necessary amend- 
ments, expresses the wish that this institution may be called 
into existence to replace the bureau provided for in the act 
at a time in the future when, by common accord, the powers 
shall have recognized that circumstances render possible 
the adoption of this measure. 


The plenipotentiary of Great Britain (Lord Vivian) 
thereupon made the following declaration: 


The [British] Government regrets that the [French] Gov- 
ernment has not found itself able, at the present time, to 
consent to the insertion in the general act of the proposition 
submitted to the commission by the British plenipotentiary, 
according to which more extended functions would be dele- 
gated to the central bureau at Brussels. In consenting that 
this proposition shall be spread upon the records of the pro- 
ceedings of the conference the [British] Government can 
only hope that the moment is not far distant when it will 
be adopted. 


20 


306 The Question of Aborigines 


Mr. Bourée stated that he was ‘‘the more ap- 
preciative of the acquiescence given by the British 
plenipotentiaries to the wish expressed by the con- 
ference, inasmuch as the statements previously made 
by Lord Vivian had evidenced the importance which 
the British Government attached to the project, 
which it had caused to be introduced.” (d., pp. 
247-249.) 

The final act, as will have been noticed, made no 
adequate provision for the financial support of the in- 
stitutions of surveillance. By article 86, the expenses 
of the bureau at Zanzibar were to be “‘divided in equal 
parts among the signatory powers mentioned in the 
preceding article’’—that is, by the three or more powers 
which should elect to send representatives to partici- 
pate in the Zanzibar bureau. The “‘office expenses’”’ of 
the ‘“‘special office attached to the foreign office at 
Brussels,’’ ‘“‘as well as those incurred in correspondence, 
translation, and printing,’’ were to be “‘shared by all 
the signatory powers,’ and were to be ‘“‘collected 
through the agency of the department of the foreign 
office at Brussels.’’ 

A discussion was had at the session of the conference 
of June 16, 1890, as to how these expenses were to be 
“shared,’’ but no conclusion was reached. (J0., pp. 
357, 358.) The conference ended without further action 
in this respect. 

It appears that the special office to be attached to 
the foreign office at Brussels was never instituted, or, 
at least, that it has never exercised the functions 
intended by the final act. 

The Brussels African act was ratified by the United 
States with the following proviso, which was inserted 
by the Senate by making it a part of its resolution 
advising and consenting to the ratification: 


International Action Since 1885 307 


The United States, having neither possessions nor pro- 
tectorates in Africa, hereby disclaims any intention, in 
ratifying this treaty, to indicate any interest whatsoever in 
the possessions or protectorates established or claimed on 
that continent by the other powers, or any approval of the 
wisdom, expediency, or lawfulness thereof, and does not 
join in any expressions in the said general act which might 
be construed as such a declaration or acknowledgment. 


(For the Brussels African act, see Treaties and Con- 
ventions of the United States, vol. 2, pp. 1964-1992.) 

While the provisions of the Brussels African act re- 
lating to the suppression of the slave trade and the 
restriction of the traffic in alcoholic liquors and firearms 
have since been made the subject of international con- 
ventions and accords, the provisions of the act by which 
the signatory and adherent powers recognized the duty 
of guardianship over aborigines have not been made 
the subject of further international consideration. Inas- 
much, however, as these provisions were expressly 
based upon those on the same subject in the Berlin 
African act, and were in furtherance of those provisions; 
and inasmuch as the United States, though it has not 
ratified the Berlin act, did ratify the Brussels act, the 
Brussels act has served to enable the United States to 
cooperate in all movements for the amelioration of the 
aborigines in Africa, and to base itself upon the pro- 
visions on this subject contained in the Berlin act as 
well as on those contained in the Brussels act. 

At the time when the matter of the cession to Belgium 
of the Independent State of the Congo was pending, 
in the years 1907 and 1908, the United States, on ac- 
count of reports concerning unjust treatment of abo- 
rigines in the Congo State, took action intended to 
insure the international guardianship of the aborigines, 
basing its action on articles 2 and 5 of the Brussels 


308 The Question of Aborigines 


African act. The Department of State regarded these 
articles as a repetition and enforcement of the pro- 
visions of the Berlin African act relating to the guardi- 
anship of aborigines, so as to make the United States, 
morally though not legally, an adherent of the Berlin 
African act so far as it concerns the guardianship of 
aborigines. On January 15, 1907, Secretary of State 
Root, in a dispatch to Mr. Wilson, United States min- 
ister to Belgium, said: 


Our attitude toward Congo question reflects deep in- 
terest of all classes of American people in the amelioration 
of conditions. ‘The President’s interest in watching the 
trend toward reform is coupled with earnest desire to see 
full performance of the obligations of articles 2 and 5 of 
the slave-trade act, to which we are a party. We will 
cheerfully accord all moral support toward these ends, 
especially as to all that affects involuntary servitude of 
the natives. (Foreign Relations of the United States, 


1907, pt. 2, p. 799.) 


On December 16, 1907, in a dispatch to Minister 
Wilson, Secretary of State Root said: 


Our attitude and purpose rest on the broad general pur- 
pose to elevate and benefit the native Africans as declared 
in the Berlin act, to which we are, however, not a party, 
and emphatically reaffirmed in the Brussels act of 1890, 
applicable to all dominion and control of civilized nations 
in central Africa, to which we are a party. Our voice and 
sympathy are in favor of the full accomplishment of those 
declared purposes, and, while we are not directly interested 
in the administrative and financial details of the government 
of any one of the several districts of central Africa embraced 
in the compact of 1890, we are free, and, indeed, morally 
constrained, to express our trust and hope that every suc- 
cessive step taken by the active signatories will inure to the 


International Action Since 1885 309 


well-being of the native races and execute the transcendent 
obligations of the Brussels act, in all its humanitarian 
prescription, especially as to article 2. In these respects 
the interests of all the signatories are identical. (Jb., p. 829.) 


In a letter from Secretary of State Root to the Belgian 
minister at Washington, dated January 11, 1909, the 
United States stated that it held itself bound by 
article 2 of the Brussels African act to assure a proper 
guardianship of the aborigines by the States exercising 
sovereignty within the zone covered by that act and re- 
quested an acknowledgment by Belgium of its obliga- 
tion under this act and of its intention to fulfill the 
obligation. (Foreign Relations of the United States, 
1909, p. 400.) 

On June 12, 1909, a memorandum of the Belgian 
Government was handed by the Belgian minister to 
the Secretary of State, stating that Belgium had never 
questioned this obligation. (Jb., pp. 409, 410.) 

During the progress of the negotiations in 1907 and 
1908 whereby Belgium took over the Congo State as a 
colony, as well as during the progress of the negotia- 
tions of 1909 concerning the methods to be adopted by 
Belgium for carrying out its obligations toward the na- 
tives, the United States insisted upon this interpreta- 
tion of its rights and duties under the Brussels act, and 
the interpretation was acquiesced in by Belgium and 
Great Britain and was apparently not questioned by 
other powers. (Cf. Foreign Relations of the United 
States, 1907, pt. 2, pp. 791, 829; 7b., 1908, pp. 536-593; 
1b., 1909, pp. 400-414; also Sen. Doc. No. 143, 61st 
Cong., 1st sess., Affairs of the Congo, pp. 16, 46, 182, 
202.) 

The international opium conference, convoked by 
the United States, which met at The Hague in 1911 and 


310 The Question of Aborigines 


I912, adopted, on January 23, 1912, an international 
opium convention, regulating international commerce 
in opium and its preparations, as well for the civilized 
States ‘‘as for their possessions, colonies, protectorates, 
and leased territories;’’ thus protecting the aboriginal 
populations, as well as other persons. 


CHAPTER XIV 


THE DOCTRINE OF ‘‘INTERVENTION FOR HUMANITY’ AND 
ITS EFFECT ON THE DEVELOPMENT OF THE LAW OF 
NATIONS REGARDING ABORIGINES 


HE growing practice of ‘“‘intervention’”’ by civilized 
States, individually and collectively, in the inter- 
nal and external affairs of the so-called “‘minor”’ 

or “‘semicivilized’’ States, the absence of any recognized 
rules of the law of nations and the general conviction 
that some interventions were necessary to hold to- 
gether human society and hence must be rightful under 
the law of nations, led to a consideration by scholars, 
during the latter part of the last century, of the stand- 
ards and principles which ought to be applied in any 
given case of “‘intervention’’ to determine whether the 
act was rightful or wrongful under the law of nations. 

In the year 1876, Egide R. N. Arntz, a German pub- 
licist resident in Belgium (quoted by Gustave Rolin- 
Jacquemyns, a Belgian publicist, in an article by the 
latter in the Revue de Droit International et de Légtsla- 
tion Comparée, vol. 7, p. 673) made the following state- 
ment of doctrine: 


When a Government, though acting within the limits of 
its rights of sovereignty, violates the rights of humanity, 
either by measures contrary to the interests of other States 
or by excesses of injustice and cruelty which deeply injure 
our morality and our civilization, the right of intervention 
is lawful. For, however much to be respected may be the 

311 


312. The Question of Aborigines 


rights of sovereignty, there is something yet more to be 
respected, namely, the right of humanity or the right of the 
human society, which ought not to be outraged. Just as 
in the State the liberty of the individual ought to be re- 
stricted and is restricted by the law and customs of society, 
so the individual liberty of States ought to be restricted 
by the laws of the human society. 


The proposition thus formulated by Arntz was but 
the summing up of the conclusions reached by the lib- 
eral publicists of the period, among the most brilliant 
of whom were Bluntschli in Germany and Lorimer in 
Great Britain, who were themselves inspired by the 
humanitarian aspect impressed upon the Civil War in 
the United States by the genius of Lincoln. 

This doctrine of the right of intervention for human- 
ity necessarily divided all kinds of interventions into 
two kinds—interventions for humanity, which were 
rightful under the law of nations when effected under 
conditions and circumstances guaranteeing their hu- 
manitarian character and effect, and all other interven- 
tions, which were wrongful under the law of nations. 
To give the doctrine a practical form, so that it might 
become a working basis for the social relations of. the 
States and countries constituting the whole society of 
nations, it was necessary for the States forming the 
society of civilized States to recognize the existence of 
this supreme ‘‘law of human society,’’ to determine its 
fundamental principles by applying analogies drawn 
from the private law concerning the social relations of 
individuals, and from the public law concerning the 
social relations of States already recognized and in 
force, and to derive from these fundamental principles 
the necessary subsidiary principles to facilitate and 
assure the practical observance of the fundamental 
principles. 


“Intervention For Humanity” 313 


In an essay written in 1910, when the question was 
raised whether France and Spain could legally intervene 
in the State of Morocco and convert it into an inter- 
national or colonial protectorate of one or both of them, 
under a “‘law of humanity”’ superior in obligation to 
the international act of Algeciras, a study was made of 
this doctrine by a French publicist, Antoine Rougier. 
In this essay (La Théorie de l’ Intervention d@ Humanité, 
in the Revue Générale de Droit International Public, vol. 
17, pp. 468-526) he said (p. 472): 


The theory of the intervention for humanity is properly 
that which recognizes as a right the exercise of an inter- 
national control by a State over acts of internal sovereignty 
of another State as being ‘‘contrary to the laws of human- 
ity,’’ and which justifies this control as a means of organizing 
in a juridical manner the functions of the State so con- 
trolled. According to this doctrine, whenever the “‘human 
rights’’ of a people are persistently ignored by those who 
govern it, a State or a group of States may intervene in the 
name of the society of nations, either to require the annul- 
ment of the acts of public power which are the subject of 
criticism or to prevent in the future a renewal of such acts, 
or in case the government is inert, to substitute temporarily 
its or their sovereignty in place of the sovereignty of the 
State controlled and take such measures of conservation as 
are urgently needful. 


This supreme law, which by some publicists had been 
called ‘‘the law of human solidarity” or ‘‘the law of 
humanity,” but which Rougier preferred to call ‘‘the 
human law’”’ (le droit humain), he described as follows 


(pp. 491, 494): 


The peoples live . . . a triple social life, corresponding 
to a triple form of collective organization. The national 
society corresponds to the juridical intercourse of indi- 


314. The Question of Aborigines 


viduals grouped politically upon a unitary territory. The 
international society corresponds to the juridical inter- 
course of political groups of States with one another. The 
human society corresponds to the juridical intercourse of 
all men, of each with each and of each with all, without 
distinction arising out of political classifications. And as 
no society can exist without a responsibility which condi- 
tions its activity—that is, without a law of its own—there 
must necessarily be a national law, an international law, 
and a human law. 

If one compares these forms of law, it is evident that the 
human law is supreme over all, because it corresponds to 
the primordial form of society, to the deepest and most 
permanent needs of human nature, while the two other 
forms correspond to needs more diverse, more contingent, 
more variable. The human law must, perforce, dominate 
and penetrate the national law and the international law, 
because the ends of all human society are of a double 
character; because, before it can satisfy the contingent in- 
terests of its political groups, it must satisfy the human 
rights of its members. It has a human mission to fulfill 
before it fulfills its national and international missions 
which are of a less universal character. 

The humanlaw . . . comprises all the rules which have 
as their characteristic to express or develop the human soli- 
darity. . . . The human solidarity requires that all the 
activities of man, whether as a physical, a moral, or a social 
being, should be protected—his life, his physical and moral 
liberty, his aptitude for social intercourse. The human law 
must guarantee to individuals the respect for life, the respect 
for material and moral liberty, and, finally, the recognition 
of a legal order, which is the sine qua non of life in society. 
I say “‘a legal order,’’ without defining the term exactly. 
Each particular society is free to determine the legal order 
which it thinks proper to establish upon its territory, con- 
formably to the principles of the human solidarity. The 
rights which are derived from the legal order established 
by a particular society are the political, public, and civil 


“Intervention For Humanity” 315 


rights of the individuals composing it. The only thing 
which the human solidarity requires is that there shall 
exist in each nation a legal order of some kind regulating 
the relations of the governors and the governed, that the 
individual shall not be subjected to a régime of a purely 
arbitrary character, and that the established legal order 
shall not be arbitrarily violated. It is thus that the deter- 
mination of crimes punishable by death belongs to the 
legislature of each nation, but that the execution of a citizen 
without judgment, or for an act which no law has declared 
a crime, constitutes a violation of the human law. The 
human law is summed up in the triple formula—the law of 
life, the law of liberty, the law of legality. These three 
terms correspond closely to those used in the Declaration 
of the Rights of Man and of the Citizen, of 1789—liberty, 
resistance to oppression, which corresponds to the right of 
legality, and security—which implies respect for life. The 
text of 1789 adds the right of property. 


It is thus evident that Rougier identifies ‘‘the law of 
humanity”’ with the fundamental rights of man recog- 
nized in the preamble of the American Declaration of 
Independence of 1776, when it asserts as a “‘self-evident 
truth’ that “governments are instituted among men 
to secure certain unalienable rights’ of all men, with 
which they are “endowed by their Creator,” and as 
respects which ‘‘all men are created equal,’ the rights 
thus existing under this supreme ‘‘law of humanity” 
being, among others, the rights of “‘life, liberty, and the 
pursuit of happiness’’ through legal order. 

As respects the rule for determining which of the 
States, in a particular case, have the right to intervene 
for humanity, Rougier, in common with all other pub- 
licists, holds that a State in order to have this right of 
intervention must, first of all, be a full member of the 
society of the civilized States. Those States which rec- 


316 ‘The Question of Aborigines 


ognize themselves as obligated to fulfill the functions 
which are necessary to the existence of all organized 
society, by maintaining order and justice under a regu- 
lar government and securing the human rights of their 
inhabitants “‘form a community or society, anciently 
called the community of the Christian States, now the 
community of the civilized States’ (p. 495). Those 
States or countries which do not fulfill these fundamen- 
tal obligations of every State—obligations which ‘“‘bind 
it in common with all other members of the community 
of the civilized States, and in the performance of which 
the whole international community is interested,” 
place themselves in a situation of an exceptional char- 
acter, which is thus described (pp. 495, 496): 


A Government which fails in its function by ignoring the 
human interests of the governed commits what may be 
called a perversion of its sovereignty; its right of self-de- 
termination no longer imposes itself in a sovereign manner 
upon third States. . . . The other members have an 
interest in intervening to control its action, and they have 
a right to intervene by reason of its violation of the human 
law. In place of the sovereignty of the culpable Govern- 
ment there is substituted a foreign sovereignty, either to 
annul the act to which the fault attaches or to prevent 
similar defaults from occurring in the future. . 

As respects the manner and extent of the control, there 
is this distinction to be made: . . . Between two States 
equally developed belonging to a group of civilized powers 
the control will be temporary and occasional. It is to be 
presumed that these powers will perform as fully as possible 
their essential functions, and that the fault of any one of 
them is an accidental one, which it is only necessary to 
point out in order to prevent its repetition. . 

When the violations of the law of human solidarity occur 
in the case of a barbarous or half-civilized State, in which 
the disorders have a durable and permanent character, the 


“Intervention For Humanity” 317 


civilized powers must of necessity have recourse to a more 
energetic method of control—a control adapted to prevent 
the wrong-doing rather than to repress it or to cause repar- 
ation to be made. Instead of the right of ordinary interven- 
tion there then arises the right of permanent intervention. 


The views of publicists differ greatly on the scope and > 
character of the right of ‘“‘intervention for humanity.” 
Most of them assert that it applies only against civi- 
lized or half-civilized States. On the other hand, De 
Martens holds that it is a right solely against barbarous 
tribes (Traité de Droit International, § 76). Pillet, in 
his article on Les Droits Fundamentaux des Etats, in 
the Revue Générale de Droit International Public (vol. 
6, 1899, p. 256), regards the subjects of “intervention 
for humanity,’’ and ‘‘the mission which the civilized 
nations have as respects savages,’’ as falling outside the 
limits of his study of ‘‘the fundamental rights of States,”’ 
because in these activities of a State its own interests 
are not at stake, it being “‘a participant in the common 
work of all nations.’’ (Cf. Rougier, article above cited, 
p. 482, note; p. 497, note.) 

Rougier remarks (page 468) that perhaps the slowly 
developing recognition of the right of “‘intervention for 
humanity” is ‘‘the sign of an evolution in doctrine 
toward a new conception of international society, ac- 
cording to which the nations, while remaining strictly 
solidary and dependent one on the other, will be 
grouped under a jurisdictional authority, or, at least, 
under a hierarchical power, charged with the duty of 
assuring to all of them respect for justice.’’ 

Until recently, it has been only the part of the world 
under French influence which has recognized the term 
“intervention for humanity’ as a term of jural signifi- 
cance. In the part of the world under British influ- 


318 = ‘The Question of Aborigines 


ence, intervention is generally considered as a political 
fact, incapable of being given a jural character. In 
the part of the world under German influence the exist- 
ence of an actual organized society of nations is assumed 
by scholars, and each civilized state is regarded as 
having a right under the law of nations to extend its 
sovereignty to the extent that may be needful and 
proper under the circumstances, ‘‘for the protection of 
the common interests of the society of the civilized 
states.’’ This doctrine is very precisely stated by von 
Liszt, the leading writer on international law in Ger- 
many. (Das Vélkerrecht systematisch dargestellt, by 
Franz von Liszt, 1oth ed., 1915, pp. 175-281.) 

In the United States, the tendency has been to avoid 
the use of the word intervention altogether as implying 
an act considered as having a nonjural character, and 
to speak of such acts as extensions of sovereignty or 
influence made in pursuance of the law of nations, which 
the United States has always recognized as a part of its 
own law. The principles which the United States has 
recognized and acted upon as principles of the law of 
nations for determining the rightfulness or wrongfulness 
of extensions of national sovereignty are those universal 
principles declared in the preamble of the Declaration 
of Independence, and implied or expressed in the Con- 
stitution of 1787. In deriving subsidiary principles 
from these fundamental and universal principles, the 
United States has followed analogies drawn from the 
private law relating to the formation and management 
of associations and partnerships, and to the rights and 
duties attaching to the relationship of partner and co- 
partner, tenant in common and cotenant, patron and 
apprentice, and guardian and ward. Thus by treating 
intervention of strong states in the affairs of weak states 
as one of a large class of cases in which a civilized state 


“Intervention For Humanity” 319 


extends its sovereignty over other states and countries, 
the United States is beginning to substitute in place of 
the idea of “intervention for humanity,” undera ‘“‘law 
of humanity” or a ‘‘law of human society,’ the idea 
of extension of sovereignty over states and countries 
in various ways and with various effects according to 
recognized principles of the law of nations; the division 
of the law of nations thus placed in process of formula- 
tion so as to be susceptible of international recognition 
being perhaps properly designated as the part concern- 
ing social relations, and corresponding to that part of 
the private law which is classified as the law of personal 
relations or the law of social and domestic relations. 
The law of all these relationships is based upon the 
assumption of their having a fiduciary character. Using 
trusteeship in its largest sense as a generic word to 
express all fiduciary relationships, including those es- 
sentially of a personal character, the basic principle of 
_ this part of the law is that in all these relationships one 
person is trustee for another. 

The American substitute for the doctrine of “‘inter- 
vention for humanity”’ thus has the effect to convert 
all acts of force of a civilized State extending its sover- 
eignty or influence to another State or country, by 
consent of the other civilized States or without their 
opposition, into acts institutive of an international 
trusteeship, the terms of which are determined by that 
part of the law of nations which concerns the social 
and domestic relations of States and countries. The 
civilized States which consent to the extension of sov- 
ereignty or intentionally refrain from opposition to it, 
resemble the family council which under some systems 
of jurisprudence is provided for as precedent to the 
application of a court of equity for the appointment of 
a guardian for a minor individual, or the meeting of 


320 The Question of Aborigines 


relatives and creditors which generally precedes an 
application to a court of equity for the appointment of 
a conservator of a person incompetent to manage his 
own affairs. In the society of nations the court of 
equity being non-existent, the appointment is made by 
the meeting of the civilized States related to the incom- 
petent major or minor State, or to the incompetent 
community, as neighbors or creditors or as professional 
trustees for profit. 

That a State is an artificial personality having such 
a corporate character in the law of nations that it is 
capable of trusteeship under the law of nations, is well 
settled. The Supreme Court of the United States has 
held that the United States itself, as a legal personality, 
may be a trustee under the law of nations; and that it 
has, in fact, executed trusts of a most important kind, 
going even to the extent of holding sovereignty in 
trust for other States and conferring it upon these 
States according to the agreed terms and conditions of 
the trust. In the case of Shiveley v. Bowlby, decided 
in 1894 (152 U.S., 1, 26, 27), the court thus described 
the terms of one very important trust undertaken by 
the United States: 


The act of 1783 and the deed of 1784 by which the State 
of Virginia, before the adoption of the Constitution, ceded 
“unto the United States in Congress assembled, for the 
benefit of the [new States to be formed in the Northwest 
Territory], all right, title, and claim, as well of soil as juris- 
diction” to the Northwest Territory, and the similar cession 
by the State of Georgia to the United States in 1802 of 
territory including great part of Alabama and of Missis- 
sippi, each provided that the territory so ceded should be 
formed into States, to be admitted, on attaining a certain 
population, into the Union (in the words of the Virginia 
cession) ‘“‘having the same rights of sovereignty as the other 


“Intervention For Humanity” 321 


States,” or (in the words of the Ordinance of Congress 
of July 13, 1787, for the government of the Northwest 
Territory, adopted in the Georgia cession) ‘‘on an equal 
footing with the original States in all respects whatever, 


”? 


The court then quoted and approved its decision 
made in the case of Pollard v. Hagan, 3 Howard, 212, 
221, 222, decided in 1844, as follows: 


We think that a proper examination of the subject will 
show that the United States never held any municipal 
sovereignty, jurisdiction, or right of soil, in and to the 
territory of which . . . any of the new States were 
formed, except for temporary purposes, and to execute the 
trusts created by the acts of the Virginia and Georgia 
Legislatures, and the deeds of cession executed by them to 
the United States, and the trust created by the treaty with 
the French Republic of the 30th of April, 1803, ceding 
Louisiana. . . . When the United States accepted the 
cession of the territory, they took upon themselves the 
trust to hold the municipal eminent domain for the new 
States, and to invest them with it to the same extent in 
all respects, that it was held by the States ceding the 
territories. 


This trust was fulfilled by the United States in letter 
and in spirit. 

It has been objected by some writers that the doc- 
trine of the “right of intervention for humanity”’ can 
never be a practical doctrine, because intervention for 
humanity implies disinterestedness, and disinterest- 
edness of States is non-existent. This objection would 
seem to be valid. If, however, “intervention” be re- 
garded, according to the views held by the United 
States, as an extension of national sovereignty or influ- 
ence, the rightfulness or wrongfulness of each extension 


aI 


322 The Question of Aborigines 


of sovereignty or influence is determined, according to 
the principles of trusteeship, by the part of the law of 
nations concerning the social relations of States and 
countries, and disinterestedness is not essential. Most 
of the social relations of men and States are determined 
by the interestedness of the parties. The family coun- 
cil in cases of guardianship, the meeting of relatives 
and creditors in case of conservatorship, are meetings 
of the parties interested; and if they agree on the person 
to be appointed guardian or conservator, the court of 
equity having jurisdiction generally confirms the selec- 
tion. Nor does it as a general rule make any difference 
that the person selected is interested, even against the 
minor or incompetent. The court considers the ca- 
pacity and character of the candidate for the office, and 
unless there is active competition or conflict between 
their business operations, so as to place the candidate 
under severe temptation, does not allow such considera- 
tions to weigh against an established reputation for 
high character and probity. 

The United States has for a century recognized itself 
as guardian of the aboriginal tribes under its sovereignty 
under the law of nations. The question of disinterest- 
edness or interestedness has never been raised. 

By some writers it is held that an intervention can 
never be rightful under the law of nations unless made 
by a group of States or by one State acting by permis- 
sion or request of a group. This doctrine is based on 
the ground that the participation of the larger number 
assures the “‘disinterestedness’’ which is essential to an 
“intervention for humanity.’ The fallacy of this doc- 
trine lies in assuming that such an assembly is a court 
of equity, and as such must be disinterested. Such a 
gathering, however, is not a court. It does not pro- 
ceed by the judicial method, hearing evidence and argu- 


“Intervention For Humanity” 323 


ment and making decision according to the principles 
of law. The society of nations has not yet established 
a court of equity to impose conservatorship upon incom- 
petent States or guardianship upon aboriginal tribes. 
The group of powers is always an interested group, and 
properly so; for each State is interested in the social 
relations of all and each, and the question is not of 
absence of interest, but of degree of interest due to 
physical or spiritual proximity. An international con- 
ference preceding an extension of sovereignty over an- 
ther State or country is, it would seem, in contempla- 
tion of the law of nations under present conditions, 
rather to be regarded as a family meeting or family 
council, or a meeting of relatives and creditors. The 
State which is appointed by the meeting, whether by 
its free and deliberate action or after contest between 
two or more members as professional conservators or 
guardians for profit, is, it would seem, in contemplation 
of the law of nations, the agent of the meeting. If so, 
the principles of the private law of agency applicable 
in such cases between individuals are undoubtedly to 
be applied. 

The State selected to perform this highly honorable 
and difficult agency and trusteeship is thus obligated, 
according to the law of nations, to observe in letter 
and in spirit, the principles agreed upon by the meeting, 
and, except so far as the agreement confers discretionary 
powers, to carry out, precisely, the measures agreed 
upon in execution of the principle. If the State thus, 
as agent of the meeting, occupying the position of 
conservator or guardian, at any time deems unjust the 
principles agreed upon, or considers improper the 
measures in execution of the principles agreed upon, or 
regards the agreement itself as having become obsolete, 
it is its duty to take the initiative in having the agree- 


324. The Question of Aborigines 


ment amended or abrogated by a new agreement of the 
meeting; and on failure of its project of amendment or 
abrogation in whole or in part, to resign the agency, or 
continue to exercise it according to the terms agreed 
upon by the meeting. 

Each of the States other than the one appointed 
as agent has, in this view of the law of nations, the 
right and duty, at any time during the continuance 
of the conservatorship when it may come to regard 
the agreement as based on principles which are 
unjust, or the measures agreed upon in execution as 
improper, or may have reason to think that the State 
appointed as agent of the meeting is acting wlira 
vires, or is failing to act according to obligation, 
or may deem the arrangement obsolete or the con- 
servatorship no longer necessary, to take the in- 
itiative in having the agreement amended, or having 
it abrogated and a new agreement substituted, or in 
having it abrogated altogether so as to end the con- 
servatorship; or in having the State which is agent 
called to account for malfeasance or nonfeasance in ex- 
ecuting the agency. 

The objection to the doctrine of intervention for 
humanity that it is based upon a hypothesis of disin- 
terestedness which in fact can never exist has therefore 
no significance as respects the doctrine of extension of 
national sovereignty on principles of trusteeship, since 
the latter doctrine is based on the hypothesis of the 
interestedness of all the parties concerned, which cor- 
responds with the actual fact. 

It has been said that the doctrine of “intervention 
for humanity”’ in spite of the humanitarian purpose of 
those who formulated it, is, in the practice of nations, 
used fraudulently and as a means of covering conquest 
and exploitation with a veil of legality. Thus Rougier, 


“Intervention For Humanity ” 325 


at the conclusion of the article above quoted (pp. 525, 
' 526) wrote in IgI0: | 


The conclusion which it seems necessary to reach from 
this study is, that it is practically impossible to separate the 
human motives from the political motives and to assure the 
absolute disinterestedness of the intervening States. . 
From the instant that. the intervening powers judge their 
action to be opportune, they regard this opportunity from 
the subjective point of view of their interests for the mo- 
ment. . . . Whenever a power intervenes, in the name 
of humanity, in the sphere of competence of another power, 
it does nothing else than oppose its conception of justice 
and social welfare to that of the latter, and it supports 
its conception by force. Its action has a tendency, as a 
matter of fact, to involve the State which is the object of 
the intervention in the moral and social sphere of influence 
of the intervening State, and to result in involving the for- 
mer in the political sphere of influence of the latter. The 
intervening State controls the country in order to prepare 
to dominate it. Thus the intervention for humanity ap- 
pears as an ingenious juridical means of taking away, 
little by little, the independence of a State, and of keeping 
it on a downward incline toward a semi-sovereignty. 


If the doctrine of “intervention for humanity” has 
in practice this alleged effect of demoting sovereign 
States to the status of half-sovereign States (and, by 
necessary implication, of demoting half-sovereign States 
to the status of aboriginal tribes), it would seem reason- 
able to conclude that this effect is due to the inadequacy 
of the doctrine itself. No well-founded legal doctrine 
readily becomes an “ingenious juridical means” by 
which an act recognized to be morally wrong becomes 
legally rightful. Considering interventions of civilized 
States in the affairs of semicivilized States as an exten- 


326° The Question of Aborigines 


sion of national sovereignty and regarding all extensions 
of national sovereignty as regulated by that part of 
the law of nations which is concerned with the social 
relations of States and countries, which part of the law 
is based upon the fundamental principle of trusteeship, 
there would seem to be no possibility of civilized States 
legally engaging in the work of demoting any com- 
munity from the status which it has acquired by general 
recognition. The trusteeship is for conservation and 
elevation of status. A conservator or guardian can find 
in the private law no warrant for altering for the worse 
the social status of the incompetent person or the ward. 
His duty is to alter it, if possible, for the better. 

When the United States extended its sovereignty over 
Cuba, the Philippines, and Porto Rico, as the result of 
the Spanish War, the public sentiment was strongly 
against “‘imperialism’’ and in favor of the doctrine that 
‘‘the Constitution follows the flag.’’ In developing a 
conception of the law of nations which should take 
account of this public sentiment the American Govern- 
ment based itself upon the conception of a trusteeship 
implied in sovereignty. By recognizing this trusteeship 
under the law of nations, through acts of the Govern- 
ment declaratory of the trust, the relationship between 
the United States and the countries to which its sov- 
ereignty was extended was established as being social 
and not imperial, and the spirit of the Constitution 
was made to follow the flag and to permeate the spirit 
of the peoples within whose territories the flag had been 
raised by the power of the United States in conformity 
with the existing law of nations. 

The first act based on this fundamental principle of 
trusteeship occurred in the case of Cuba. On April 20, 
1898, the day before the war began, Congress made a 
declaration of trust in favor of the people of the island. 


“Tntervention For Humanity ” 327 


In the preamble it was asserted that ‘‘the abhorrent 
conditions which have existed for more than three 
years in the island of Cuba, so near our own borders, 
have shocked the moral sense of the people of the 
United States [and] have been a disgrace to civiliza- 
tion.”’ It was thereupon declared ‘‘that the people of 
the island of Cuba are, and of right ought to be, free 
and independent.’’ Having thus recognized Cuba as 
having a personality by and under the law of nations, 
the resolution then proceeded to demand that Spain 
“relinquish its authority and government in the island 
of Cuba’ and to authorize the President to use all 
needful military and naval force to bring about this 
relinquishment. It concluded by declaring a trustee- 
ship on the part of the United States toward the people 
of Cuba, thus determining its social relationship to 
Cuba as a State, in the following words: 


The United States hereby disclaims any disposition or 
intention to exercise sovereignty, jurisdiction, or control 
over said island except for the pacification thereof, and 
asserts its determination, when that is accomplished, to 
leave the government and control of the island to its people. 
(UU oaoL lev Ole 206 DD. 735.97206) 


The Supreme Court of the United States in the case 
of Neely v. Henkel, 180 U.S., 109, decided in January, 
I9OI, in construing the declaration that ‘‘the people of 
Cuba are and of right ought to be free and indepen- 
dent,’ held that it meant ‘‘that the Cubans were en- 
titled to enjoy . . . that measure of self-control 
which is the inalienable right of man, protected in their 
right to reap the exhaustless treasure of their country,” 
and that “‘as between the United States and Cuba that 
island is territory held in trust for the inhabitants of 
Cuba to whom it rightfully belongs and to whose 


328 The Question of Aborigines 


exclusive control it will be surrendered when a stable 
government shall have been established by their volun- 
tary action.” 

The United States has faithfully performed its trust. 

By the treaty with Spain, the United States assured 
itself the right to determine the relationship between 
it and each of the acquired countries according to its 
own views of the principles of the law of nations and 
its own judgment concerning the social attainment of 
each of them. The treaty provided that ‘‘the civil 
rights and political status of the native inhabitants of 
the territories hereby ceded to the United States shall 
be determined by Congress.’’ In the case of Downes v. 
Bidwell, 182 U.S., 244, decided in May, 1901, Justice 
(now Chief Justice) White, in the concurring opinion of 
himself and Justices Shiras and McKenna, said (p. 340): 


I can not doubt that the express purpose of the treaty 
was not only to leave the status of the territory to be 
determined by Congress, but to prevent the treaty from 
operating to the contrary. 


In the case of the Philippines the American Govern- 
ment, as soon as its sovereignty of the archipelago was 
assured by the treaty of peace, made a declaration of 
trust recognizing the duties under the law of nations, 
arising by virtue of the personal relationship thus 
brought about between it and the Philippine Islands. 
In the proclamation to the peopie of the Philippine 
Islands of April 4, 1899, issued by the first (Schurman) 
Philippine Commission by order of the President, it 
was declared that the treaty with Spain for the cession 
to the United States of the sovereignty which Spain for- 
merly possessed and exercised in the islands had, ‘‘in 
accordance with the law of nations, received a complete 


“Intervention For Humanity ” 329 
and indefeasible consummation,’ and that “in order 
that the high responsibilities and obligations with 
which the United States has thus become definitely 
charged may be fulfilled in a way calculated to promote 
the best interests of the inhabitants of the islands,”’ 
the President had appointed the commission. 

The proclamation then proceeded as follows: 


The aim and object of the American Government, apart 
from the fulfillment of the solemn obligations it has assumed 
toward the family of nations by the acceptance of the 
sovereignty over the Philippine Islands, is the well-being, 
the prosperity, and the happiness of the Philippine people, 
and their elevation and advancement to a position among 
the most civilized peoples of the world. 

[The President] believes that this felicity and perfection 
of the Philippine people is to be brought about by the 
assurance of peace and order; by the guaranty of civil and 
religious liberty; by the establishment of justice; by the 
cultivation of letters, science, and the liberal and practical 
arts; by the enlargement of intercourse with foreign nations; 
by the expansion of industrial pursuits, trade, and com- 
merce; by the multiplication and improvement of the means 
of internal communications; by the development, with 
the aid of modern mechanical inventions, of the great 
natural resources of the Archipelago; and in a word, by the 
uninterrupted devotion of the people to the pursuit of 
those useful objects and the realization of those noble ideals 
which constitute the higher civilization of mankind. . 

The commission emphatically asserts that the United 
States is not only willing, but anxious, to establish in the 
Philippine Islands an enlightened system of government 
under which the Philippine people may enjoy the largest 
measure of home rule and the amplest liberty consonant 
with the supreme ends of government, and compatible 
with those obligations which the United States has assumed 
toward the civilized nations of the world. 


330 The Question of Aborigines 


The United States striving earnestly for the welfare and 
advancement of the inhabitants of the Philippine Islands, 
there can be no real conflict between American sovereignty 
and the rights and liberties of the Philippine people. For, 
just as the United States stands ready to furnish armies, 
navies, and all the infinite resources of a great and powerful 
nation to maintain and support its rightful supremacy over 
the Philippine Islands, so it is even more solicitous to 
spread peace and happiness among the Philippine people; 
to guarantee them a rightful freedom; to protect them in 
their just privileges and immunities; to accustom them to 
free self-government in an ever-increasing measure; and to 
encourage them in those democratic aspirations, sentiments, 
and ideals which are the promise and potency of a fruitful 
national development. 

It is the expectation of the commission to visit the 
Philippine people in their respective Provinces, both for 
the purpose of cultivating a more intimate acquaintance 
and also with a view to ascertaining from enlightened 
native opinion what form or forms of government seem 
best adapted to the Philippine peoples, most apt to conduce 
to their highest welfare, and most conformable to their 
customs, traditions, sentiments, and cherished ideals. Both 
in the establishment and maintenance of government in 
the Philippine Islands it will be the policy of the United 
States to consult the views and wishes, and to secure the 
advice, cooperation, and aid of the Philippine people them- 
selves. 

In the meantime the attention of the Philippine people 
is invited to certain regulative principles by which the 
United States will be governed in its relations with them. 
The following are deemed of cardinal importance: 

I. The supremacy of the United States must and will 
be enforced throughout every part of the archipelago, and 
those who resist it can accomplish no other end than their 
own ruin. 

2. The most ample liberty of self-government will be 
granted to the Philippine people which is reconcilable with 


“ Intervention For Humanity ” 331 


the maintenance of a wise, just, stable, effective, and eco- 
nomical administration of public affairs, and compatible 
with the sovereign and international rights and obligations 
of the United States. 

3. The civil rights of the Philippine people will be guar- 
anteed and protected to the fullest extent; religious freedom 
assured; and all persons shall have an equal standing before 
the law. 

4. Honor, justice, and friendship forbid the use of the 
Philippine people or islands as an object or means of exploi- 
tation. The purpose of the American Government is the 
welfare and advancement of the Philippine people. 

5. There shall be guaranteed to the Philippine people an 
honest and effective civil service, in which to the fullest 
extent practicable, natives shall be employed. 

6. The collection and application of taxes and revenues 
will be put upon a sound, honest, and economical basis. 
Public funds, raised justly and collected honestly, will be 
applied only in defraying the regular and proper expenses 
incurred by and for the establishment and maintenance of 
the Philippine Government, and for such general improve- 
ments as public interests may demand. Local funds, col- 
lected for local purposes, shall not be diverted to other ends. 
With such a prudent and honest fiscal administration, it 
is believed that the needs of government will in a short 
time become compatible with a considerable reduction in 
taxation. 

7. A pure, speedy, and effective administration of justice 
will be established, whereby the evils of delay, corruption, 

and exploitation will be effectually eradicated. 
' 8. The construction of roads, railroads, and other means 
of communication and transportation, as well as other pub- 
lic works of manifest advantage to the Philippine people, 
will be promoted. 

9. Domestic and foreign trade and commerce, agriculture 
and other industrial pursuits, and general development of 
the country in the interests of its inhabitants will be the 
constant objects of solicitude and fostering care. 


332. The Question of Aborigines 


10. Effective provision will be made for the establishment 
of elementary schools in which the children of the people 
shall be educated. Appropriate facilities will also be pro- 
vided for higher education. 

11. Reforms in all departments of the Government, in 
all branches of the public service, and in all corporations 
closely touching the common life of the people must be 
undertaken without delay and effected, conformably to 
right and justice, in a way that will satisfy the well-founded 
demands and the highest sentiments and aspirations of the 
Philippine people. 

Such is the spirit in which the United States comes to 
the people of the Philippine Islands. [The President] has 
instructed the commission to make it publicly known. 
(S. Doc., vol. 44, 56th Cong., Ist sess., pp. 3-5.) 


This proclamation was evidently intended to stand 
as a permanent fundamental constitution and compact, 
establishing the terms of the trusteeship which the 
United States recognized itself as assuming under the 
law of nations, as respects all peoples and territories 
over which it in any manner extends its sovereignty. 
The acts agreed to be done were recognized as incum- 
bent upon it because they were all needful in execution 
of those principles of social relationship which have a 
universal character, and which are expressed or implied 
in the preamble of the Declaration of Independence 
and in the Constitution; these principles, by reason of 
their universality, being recognized as principles of the 
law of nations. 

The proclamation was, however, almost wholly an 
affirmative statement. It contained no bill of rights 
imposing legal limitations by way of express prohibition 
upon all government in the Philippine Islands similar 
to those imposed upon all governments in the United 
States by the bills of rights contained in the Federal 
Constitutions and in the State constitutions. Such a 


“Intervention For Humanity ” 333 


bill of rights, made by combining all the provisions of 
the Federal and State bills of rights which have a 
universal character and are capable of universal appli- 
cation, was accordingly inserted in the instructions of 
April 7, 1900, to the commission appointed to take 
over the civil government of the Philippines from the 
military authorities, commonly called the first (Taft) 
commission. This bill of rights has been quoted previ- 
ously in this study (pp. 59-61). Its provisions were 
incorporated almost literally in the organic act of the 
Philippine Islands of July 1, 1902. They are also incor- 
porated in the new organic act of August 29, 1916, by 
which an autonomous government for the Philippines 
is established in preparation for the ultimate indepen- 
dence of the Islands, which the act promises and assures. 

Elihu Root, who was the Secretary of War from 1899 
until 1904, and thus in principal charge of the relations 
with these countries during the period when the Ameri- 
can Government was thus formulating and applying 
its conception of the true principles of the law of nations 
governing such relations, has recently described this 
evolutionary action of the United States. Speaking 
particularly with reference to the Philippine Islands, 
he has said: 


We acquired the rights and undertook the duties of sov- 
ereignty. We declared a trust for the benefit of the people 
of the islands. . . . Wecan not relieve ourselves from 
[the obligations thus assumed] except in one way, and that 
is by carrying our performance to such a point that our 
cestuis que trustent will be competent to take care of them- 
selves. . . . We took the same view of rights and duties 
when we became sovereign and the Filipinos colonists that 
we did in the time of the American Revolution when we 
were colonists and Great Britain was sovereign. We under- 
took to go a little farther than other countries had gone, 


334. The Question of Aborigines 


and to make the first consideration in our government of 
the islands the training of the inhabitants in the difficult 
art of self-government, so that they would as soon as pos- 
sible become competent to govern themselves instead of 
being governed by us. Accordingly, one of the first things 
that we did was to send over teachers by the shipload— 
thousands of them—and to establish schools all over the 
islands. And then we provided a form of government 
under which the Philippines should receive what may be 
called clinical instruction in administration and in the ap- 
plication of the principles which we consider vital to free 
self-government and we provided that, step by step, just 
as rapidly as they became familiar with the institutions 
of free government and capable of continuing them, the 
powers of government should be placed in their hands. I 
am sure that this view of suitable treatment of the Philip- 
pines, so long as we are to be in the islands at all, commends 
itself to the best intelligence and practical idealism of the 
American people. (The Philippines, to the End of the 
Military Régime, by Charles B. Elliott, 1917, prefatory 
note by Elihu Root.) 


The doctrine of the ‘“‘intervention for humanity” 
would thus appear to have been a first step toward 
the development of a law of nations, dealing with the 
social relationships of States and countries. The su- 
preme “‘law of humanity”’ on which it was based was 
found to be so indefinite as to be dangerous. Any 
State, basing itself on this “‘higher law,’’ could hold 
itself exempt from all its conventional obligations, even 
those of the most solemn kind which a State assumes 
by participating in the final act of an international con- 
ference. To avoid this danger, publicists sought to 
limit this ‘‘higher law’’ by defining it as the ‘‘law of 
human solidarity”; thus applying the principles of the 
French law of partnership and association, whereby the 
partners or associates are regarded as mutual trustees 


“Intervention For Humanity ” 335 


and agents—each for each, each for all, all for each, 
and all for all—and whereby the unit thus formed is 
characterized as solidaire and the partners or associates 
are considered to exist, for the purposes of the partner- 
ship or association, in a relationship of solidarité. ‘This 
definition of the supreme ‘‘law of humanity” as the 
supreme “‘law of human solidarity,’’ imported into the 
law of nations notions which were partly social and 
partly economic, but which were essentially those of 
commercial agency. The notion of reciprocal trustee- 
ship of a personal as well as an economic character, 
however, is a part of the conception of the relationship 
of solidarity. By the application of this notion of 
reciprocal trusteeship of a personal character, and by 
applying analogies drawn from the private law concern- 
ing the social and domestic relations of individuals, a 
part of the law of nations under the condition of peace 
seems already to have been evolved, which may perhaps 
be called the social law of nations. 

Though the doctrine of ‘intervention for humanity” 
has doubtless been abused by civilized States, in the 
same way that the doctrine of the freedom of the indi- 
vidual to act under ‘‘the higher law’”’ has been abused 
by individuals, it has probably served, on the whole, 
to promote the well-being of the weaker States, com- 
munities, and individuals. Transformed into the doc- 
trine of “extension of national sovereignty according to 
the social law of nations,” the doctrine exists in a prac- 
tical and effective form, and the possibility of its abuse 
is avoided. 


CHAPTER XV 


THE ESTABLISHMENT OF THE “‘TRIPLE PRINCIPLE’’ BY 
THE ACTION OF INTERNATIONAL CONFERENCES IN 
THE CASE OF MOROCCO, AND THE EFFECT OF THIS 
ACTION ON THE DEVELOPMENT OF THE LAW OF 
NATIONS REGARDING ABORIGINES 


HE international action which has occurred since 

1880 with reference to Morocco has involved 

the international consideration of the relation- 

ship of the leading civilized States to Morocco as a 
minor State. The questions to the solution of which 
this international action has been directed have thus 
been questions arising under what has been called above 
the social law of nations, which also governs the rela- 
tions of civilized States to aboriginal tribes. The 
principles recognized and acted upon in the interna- 
tional action concerning Morocco are therefore to be 
examined and an estimate formed concerning the rela- 
tionship of these principles to the principles above laid 
down as governing the relations between civilized 
States and aboriginal tribes. If, as claimed by some 
publicists and as might perhaps be inferred from the 
existing situation of fact, Morocco has by international 
action been demoted from the status of an independent 
and sovereign, though minor, State, to that of a territory 
partitioned into three districts, two of which are colo- 
nies of two of the major or civilized States, and the third 
a district under international administration as a kind 
of federal reservation of the society of nations, the case 


336 


The “Triple Principle” 337 


of Morocco, as a case of demotion or reduction of inter- 
national status by international action, would be of 
great interest in a study of the law of nations concerning 
aborigines. To all members of the society of nations, 
a case of reduction of international status by inter- 
national action is of vital interest. The principles ap- 
plied in demoting a minor State would, if recognized as 
just and proper, be equally applicable in demoting a 
major State. As aboriginal tribes have the lowest pos- 
sible international status, a legal process of demotion, 
as applied to them, whether by international action or 
otherwise, would seem necessarily to be a legal process 
of extinction. 

_ Therefore, in view of these claims of publicists, sup- 
ported as it may be claimed by existing political facts, 
that Morocco has been demoted and partitioned into 
districts which are colonies of civilized States, it seems 
necessary to consider in this study the international 
action concerning Morocco in its legal aspects. 

The preliminary question is to determine whether 
consideration should be given in such a study to all the 
various acts of civilized States which have occurred 
with reference to Morocco, especially those which have 
occurred since the spring of 1904 and which for 10 years 
preceding the present war produced a condition of con- 
tinuous political tension in Europe and twice threatened 
to produce a European war. These various acts are of 
three different classes: Acts done separately by one 
civilized State as acts of force or of military rule or of 
civil administration; acts having the form of treaties, 
some public and some secret, entered into by two or 
three States with each other; and acts having the form 
of general acts entered into by a large number of civi- 
lized States assembled formally or informally in inter- 
national conference. It seems clear that in a study of 


22 


338 The Question of Aborigines 


the relationship of the civilized States to Morocco, 
only the international acts of a general character can 
be considered. The general and unanimous act of an 
international conference, whether taken at a formal 
assembly of the conference or by unanimous accord 
through treaty or convention entered into after formal 
conference and as amendatory of the final act of the 
formal conference, seems clearly to be and is recognized 
by all civilized States as being an act of the highest 
dignity and majesty short of the unanimous act of all 
the States of the world assembled. Such an act has 
the character of a supreme and fundamental compact, 
or an act of supreme legislation, adjudication, or ad- 
ministration, as compared with any act having the 
character of legislation, adjudication, or administration 
done or of war waged, by any one of the civilized States 
which are members of the conference, or of agreement 
made by any number of them less than all. 

If the above classification of the acts of the civilized 
States with reference to Morocco be correct, as it 
would seem clearly to be, and if it be the case, as it 
undoutedly is, that all civilized States recognize the 
acts of public international conferences as having this 
supreme character as compared with the action of 
individual States or small groups of States, the study 
of the question of the present legal social status of 
Morocco, and of the principles applied by the civilized 
States in agreement with Morocco as establishing this 
legal status, is much simplified. There are, in this 
view, only three documents having this supreme char- 
acter—the final act of the conference of Madrid of 
1880; the final act of the conference of Algeciras of 
1906; and the Franco-German convention of IQII, 
which was open to the adhesion of the powers signatory 
of the Madrid act and the Algeciras act, and was ad- 


The “Triple Principle” —§ 339 


hered to by these powers. The various treaties relating 
to Morocco, made by two or three of the powers sig- 
natory of the Madrid and Algeciras act with each other, 
are acts of inferior dignity and majesty to the acts of 
the international conference, and can no more operate 
to change or in any way affect these acts than an 
act of two or three States of the Union can change 
or in any way affect the Constitution of the United 
States. 

In determining the legal status of Morocco and the 
principles applied by the action of international con- 
ferences in establishing this status, the three acts above 
mentioned—the Madrid act, the Algeciras act, and the 
amendatory accord of 1911 evidenced by the Franco- 
German convention of that year—are to be construed 
according to the established legal rules, recognized in 
all civilized systems of jurisprudence, for the construc- 
tion of legalinstruments. These are, undoubtedly, that 
the circumstances surrounding the execution of the 
instrument to be construed are to be considered, for 
the purpose of establishing its general purport and the 
general intention of the party or parties in making it; 
that the words used are to be construed in their ordi- 
nary and usual meaning, technical terms having their 
technical meaning when evidently intended to be used 
in their technical sense, the intention being determined 
by the general tenor and purport of the instrument and 
the circumstances surrounding its execution; and that 
ambiguities of meaning inherent in the words used, as 
so construed, are to be resolved by construing them 
according to the probable intention of the party or par- 
ties to the instrument as determined by its general tenor 
and purport and in the light of the circumstances sur- 
rounding its execution. 

The circumstances which led to the adoption of the 


340 The Question of Aborigines 


Madrid act of 1880 by the international conference of 
Madrid, were as follows: 

Morocco, ever since the time, at least a century before 
1880, when it had come into definite relationship with 
the civilized States, had been recognized by them as a 
State. On account of its ineptitude for civilized social 
relations, however, its statehood was recognized as 
being of the minor form, in comparison with that of 
the civilized States, all of which had statehood of the 
major form. As a consequence of this minority of 
Morocco the civilized States had demanded and Moroc- 
co had conceded to each of 12 of the leading civilized 
States, by treaty, the right of jurisdiction over their 
own citizens in Morocco. This jurisdiction was exer- 
cised in behalf of each State by its respective consul in 
a manner determined by the law of nations concerning 
consular jurisdiction in minor States. By these treaties, 
each of these 12 civilized States had certain rights to 
select certain native Moroccans as protégés for life, and 
to extend to them its consular jurisdiction. ‘The per- 
sons so selected as protégés were assumed to be agents 
or employees of the citizens of the States exercising 
consular jurisdiction, though the matter was left un- 
certain by the treaties. Any of these States was there- 
fore able, without clearly subjecting itself to a charge 
of having broken its treaty, to convert a large number 
of native Moroccans into its subjects. The natives who 
were not protégés came into conflict with the protégés. 
The States concerned became involved. It was evident 
that if the practice of creating protégés were carried 
sufficiently far, the civilized States, or some or one of 
them, might, through its citizens and protégés dominate 
Morocco and convert it into a colony or partition it into 
colonies. Moreover, one State, by a combined process 
of commercial penetration, the employment of native 


The “ Triple Principle ” 341 


Moroccans, and the conversion of them into its proté- 
gés, could obtain the dominating commercial influence 
in Morocco, and by gradually extending its commercial 
influence could attain political influence, by gradually 
extending its political influence could attain political 
control, and by gradually extending its political con- 
trol could attain sovereignty. The provisions of the 
treaties of Morocco with the respective civilized States, 
with reference to this right of converting native Moroc- 
cans into protégés, were not only obscure, but they 
varied one from the other. The situation could be 
remedied only by the civilized States being placed 
upon a uniform basis as respects their right to create 
protégés. In order to insure the observation of this 
principle of uniformity it was also necessary to pre- 
vent any of the civilized States having relations with 
Morocco from making a more favorable commercial 
treaty with Morocco than the others had. Unless 
this were prevented, it would be possible for a State 
having a preferential commercial treaty, especially by 
taking advantage of the obscurity of the treaties as 
respects the right to create protégés, to attain in Mo- 
rocco, without obstruction, a commercial predomi- 
nance, and, by the gradual pushing process above 
described, ultimately to reduce its status from that of 
a minor State to that of a colony. 

There were special and permanent considerations in 
the case of Morocco which induced the civilized States 
having relations with that State to accept its invitation 
to confer with it concerning the maintenance of its 
status as a minor State. These considerations were 
based on its geographical location as related to the 
international processes of social intercourse, trade, and 
war. The territory of Morocco includes the south 
shore of the narrow Strait of Gibraltar, which separates 


342 The Question of Aborigines 


western Europe from western Africa. Through this 
channel, not more than 10 miles wide at its narrowest 
point, passes the great middle route for the sea-borne 
traffic of the world. In the near future, the great 
trunk line of railroad connecting western Europe and 
western Africa, after passing through the continent of 
Europe, collecting there vast burdens of commodities 
through an intricate network of ramifying and converg- 
ing lines, will convey these riches through the projected 
tunnel under the Strait of Gibraltar, and in return will 
bring to Europe loads of commodities collected from 
all parts of Africa. The district lying between the shore 
of the harbor of Tangier and the Morocco end of the 
European-African Railroad tunnel will in the future be 
the point at which the main sea trade-route of the world 
will intersect one of the greatest of the world’s trunk 
lines of railroads. It must therefore become a great 
commercial center. The possession of this district and 
its hinterland—that is, of Morocco—by any one of the 
civilized States, would give that State a predominance 
likely to cause international jealousy and lead to a 
general war. It was already the settled policy in 1880 
that in interests of international order and peace, the 
sovereignty of a district of such international impor- 
tance should be vested in a minor State, and that the 
sovereignty of that State, its freedom from partition, 
and uniformity of treatment for all other States, should 
be assured by formal or informal international agree- 
ment. While there was a tendency to regard this policy 
as a “‘principle,’”” and as applicable to the relations of 
all civilized States to all minor States, the “‘policy’’ had 
not yet become a ‘“‘principle’”’ of the law of nations. 
The policy—sometimes spoken of as the ‘‘triple policy,” 
by reason of the necessity of there being a combination 
of all the three elements to accomplish the international 


The “ Triple Principle ” 343 


result intended—was particularly applicable to Turkey 
and Morocco—to Turkey as the holder of Constanti- 
nople, the junction-point of the middle sea route of the 
world with the then projected and now established 
Eastern European-Asian-African trunk line of railroad 
which will probably soon pass under the Strait of the 
Dardanelles; and to Morocco, as the holder of Tangier, 
the junction point of the middle sea route with the 
main land route, destined to be a railroad route, con- 
necting western Europe with western Africa by a tunnel 
under the Strait of Gibraltar. 

The final act, of July 3, 1880, adopted by the Madrid 
conference, recognized and applied this ‘‘triple policy.”’ 
The situation in which this policy then was, evidently 
made it impossible for the conference to formulate and 
declare it as a “principle” of the law for nations. This 
would have raised the question whether the principle 
was applicable generally to the relationship which the 
civilized States, as major States, bear individually and 
collectively, to minor States, or whether it was appli- 
cable only in special cases such as arose out of the situa- 
tion of Turkey and Morocco. 

The Madrid act was participated in by Morocco, on 
the one part, as the initiator of the conference, with 
whom the powers there assembled were collectively 
agreeing, and 12 major States collectively on the other 
part. These States were Great Britain, France, Ger- 
many, Russia, Spain, Italy, Austria-Hungary, Holland, 
Portugal, Denmark, Norway, and Sweden, and the 
United States. All, including Morocco, united in a dec- 
laration of the motives of the conference, which was 
made a part of the preamble of the final act. It was 
declared that they all “recognized the necessity of es- 
tablishing, on fixed and uniform bases, the exercise of 
the right of protection in Morocco, and of settling cer- 


344 The Question of Aborigines 


tain questions connected therewith.’ The policy of 
“‘uniformity’’ of rights in Morocco of all other States 
and their citizens was thus, according to the preamble, 
the ‘‘basis’’? on which it was declared the deliberations 
of the conference had proceeded; though it was also 
declared that the object of the conference was to apply 
this basic policy of uniformity of rights only as respects 
‘‘the exercise of the right of protection in Morocco” and 
the rights of the civilized States in Morocco ‘‘connected 
therewith.” 

The first 16 articles of the Madrid act were concerned 
with the right of protection. The seventeenth (which 
was the last with the exception of one relating to rati- 
fication) was concerned with the right of trade; this 
right being evidently regarded as a right ‘connected 
with”’ the right of protection, which was essentially a 
right of a social nature. The policy of uniformity was 
here again applied as the ‘‘basis’’ of the common action. 
Article 17 was as follows: 


The right to the treatment of the most favored nation is 
recognized by Morocco as belonging to all the powers rep- 
resented at the Madrid conference. 


The cautious statement that this uniform right exists 
in all ‘‘the powers represented at the Madrid confer- 
ence,’ and that the recognition of this uniform right is 
made ‘‘by Morocco”’ does not alter the fact that they 
all “‘recognized”’ the right of the States assembled, 
other than Morocco, to the treatment of the most 
favored nation in Morocco as respects trade. It seems 
clear that they intended to recognize that the right 
was not aright granted by Morocco, but a right existing 
under the law of nations in favor of all the civilized 
States against Morocco as a minor State for the sake of 


The “ Triple Principle” 345 


the general welfare, and in favor of Morocco for its pro- 
tection against extinction, partition, or exploitation. 

The Algeciras conference was held in pursuance of a 
program agreed to in advance by Morocco and all the 
powers which had participated in the conference of 
Madrid. This agreed program and the circumstances 
surrounding its execution may properly be considred 
in construing the final act of Algeciras as one of the 
facts surrounding the execution of that act, for the 
purpose of ascertaining its general meaning and purport. 
This program was formulated on July 8, 1905, by ex- 
change of notes between France and Germany, and was 
to be presented to Morocco and the 12 powers signatory 
of the Madrid act and accepted by them in advance. 
It was so presented and all of them accepted the pro- 
gram. 

The program was necessary to relieve a situation of 
extreme tension in Europe over Morocco. In 1904 
Great Britain, France, and Spain had asserted special 
interests in Morocco by conventions and declarations 
duly published. As a part of these transactions, they 
also entered into conventions which were not published, 
but whose contents were the subject of public surmise 
and conjecture, and which were, as then understood 
and as later shown, susceptible of being interpreted as 
intending the partition of Morocco into districts, one 
of which would be a colony of France, one of Spain, 
and one an international district commanded by the 
British fortress of Gibraltar. Germany assumed the 
position of next friend of Morocco, relying upon the 
principles implied or declared in the Madrid act, and 
in behalf of Morocco and of itself asserted that the 
action proposed by Great Britain, France, and Spain 
could be legally taken under the law of nations, if at all, 
only by authority of the final act of an international 


346 The Question of Aborigines 


conference at least equal in dignity and majesty with 
the Madrid conference. France at first asserted the 
rights of the three nations under the law of nations to 
act without authority of an international conference. 
The matter was finally adjusted by France accepting 
Germany’s position and agreeing that the conference 
should be bound in advance to the principles of the 
Madrid act, and by Germany accepting, subject to the 
permanent observance of these principles, the position 
of France that it had a “special interest’’ in Morocco. 
The note of the French Government of July 8, 1905, 
was as follows: 


The Government of the [French] Republic is convinced, 
by the conversations which have taken place at Paris and 
Berlin, that the imperial [German] Government will not 
pursue in the conference proposed by the Sultan of Morocco, 
any object which will compromise the legitimate interests 
of France in that country, or which may be contrary to the 
rights of France resulting from its treaties or arrangements 
and in harmony with the following principles; 

Sovereignty and independence of the Sultan; 

Integrity of his Empire; 

Economic liberty, without any inequality; 

Utility of reforms of police and financial reforms, the 
introduction of which should be regulated, for a short 
period, by way of international accord; 

Recognition of the actual situation of France with respect 
to Morocco, due to the contiguity, along a vast extent of 
Algeria and [Morocco], and to the particular relations which 
result between two countries which border on each other, 
as well as by the special interest which ensues to France 
that order should reign in [Morocco]. 

In consequence, the Government of the Republic with- 
draws its previous objections against the conference and 
agrees to its being convoked. (French Yellow Book, 
Affairs of Morocco, 1901-1905, pp. 251, 252.) 


The “Triple Principle” 347 


The German Government immediately replied by 
note confirming the programme and understanding as 
stated in the French note. 

The conference of Algeciras convened on January 16, 
1906, and after careful deliberation adopted a final act 
on April 7, 1906. Like the Madrid conference, it was 
called by Morocco. The same twelve major states par- 
ticipated in the conference with Morocco. More than 
a quarter of a century had passed since the Madrid 
conference, and the ‘“‘triple policy’? had proved itself 
to be a practicable working principle of relationship 
between the civilized States, individually and collec- 
tively, and the minor States. The process of demotion 
of the minor States and the conversion of them into 
colonies, either directly or under the fiction of ‘‘colonial 
protectorate,’’ was going on or had been completed in 
the cases of Tunis, Algeria, Egypt, Korea, and other 
less conspicuous cases. The action of the United States 
in declaring the people of Cuba independent, and the 
establishment by international recognition of Cuba as 
a minor State, had brought into public consideration 
the question whether civilized States ought any longer 
to indulge in the process of demotion of minor States, 
and whether the civilized States did not have the duty, 
by reason of their major status, their civilization and 
their strength, to conserve and raise the status of minor 
States and uncivilized tribes, and to recognize the 
statehood of peoples entitled by their situation and 
attainments to have this social status in the society of 
nations. 

The conference of Algeciras, having accepted by its 
program the ‘“‘triple principle’ as the basis of its delib- 
erations, and no doubt recognizing that there was a 
strong and growing public sentiment in favor of this 
chivalrous and Christian conception of the duties of 


348 The Question of Aborigines 


the strong to the weak, and itself approving this con- 
ception, made its final act the means of converting the 
traditional ‘‘triple policy’’—which, though proved to 
be satisfactory and workable, was not strong enough to 
restrain acquisitive States—into a ‘‘triple principle’’ of 
the law of nations. The conference, with proper cau- 
tion, asserted and applied the principle only as respects 
Morocco, thus leaving for future decision whether the 
principle governs the relations of all civilized States 
individually and collectively, to all and each of the 
minor or half-civilized States, or is applicable only to 
minor States whose territory is valuable for trade or 
war. This whole result was accomplished by a decla- 
ration of principle, included in the declaration of the 
motives of the conference made in the preamble of the 
final act. The declaration of motives was as follows: 


[The 12 powers and Morocco], inspired by the interest 
attaching itself to the reign of order, peace, and prosperity 
in Morocco, and recognizing that the attainment thereof 
can only be effected by means of the introduction of the 
triple principle of the sovereignty and independence of 
His Majesty the Sultan, the integrity of his domains, and 
economic liberty without any inequality, have resolved, 
upon the invitation of his Shereefian Majesty, to call 
together a conference at Algeciras for the purpose of arriv- 
ing at an understanding upon the said reforms, as well as 
examining the means for obtaining the resources necessary 
for their application, and have appointed as their delegates 
plenipotentiary, etc. 


The body of the final act was concerned with the 
‘‘reforms”’ which by the application of the ‘‘triple prin- 
ciple,’’ and to assure its observance, were deemed need- 
ful. The provisions concerning the reforms were 
classified under three heads. Those concerning reforms 
which were essentially matters of internal administra- 


The “ Triple Principle” 349 


tion—organization of a Moroccan state police, improve- 
ments in methods of assessment and collection of taxes, 
imposition of new taxes, improvement of the manage- 
ment of the public service, and construction of public 
works through contracts assigned after competition and 
adjudication of merit—were called ‘‘declarations,’’ as 
manifesting the intention of the 12 powers to have the 
internal administration continue to be in the name of 
the Moroccan Government. The provisions which in 
law constituted a 40-year charter of an international 
banking corporation, operating under French law as the 
Moroccan State Bank for the purpose of financing the 
public operations of the State, were called collectively a 
“concession.”’ The provisions concerning reforms which 
were essentially matters of external administration— 
changes in the customs laws and tariffs, the suppression 
of customs frauds and smuggling, and repression of 
contraband of arms—were called ‘‘regulations,’’ as 
showing that the 12 powers regarded themselves as 
having a joint control of the external administration 
with the Moroccan Government. 

The expression ‘‘the sovereignty and independence of 
his Majesty the Sultan,’’ was the formal method, im- 
ported into the public law of Europe from the feudal 
law, of acknowledging the independence of the people 
of Morocco as a State; the monarch under the feudal 
system, being regarded as holding the sovereignty over 
the people and over the land (to use the words of the 
Supreme Court of the United States in Shively v. Bowl- 
by, 152 U.S., 1, 14), ‘‘as the representative of and in 
trust for the nation.”’ 

The general intention of the Algeciras conference 
seems to have been to make, by the joint action of the 
I2 powers and Morocco, a general declaration of trust, 
which should have the effect of a fundamental compact 


350 The Question of Aborigines 


assuring the independence of the people of Morocco as 
a minor State, subject to an international easement or 
covenant running with the land, protecting Morocco 
against itself and against each of the major States, and 
protecting each of the major States against each and 
all of the others. 

The only provisions of the final act which recognized 
France and Spain as having special interests in Morocco 
were those relating to the organization of the Moroc- 
can State police. This police was to be a body of 
Moroccans, created and regulated by the Moroccan 
Government. Provision was made for the Moroccan 
Government employing French and Spanish officers 
as instructors for this police force; the commissioned of- 
ficers serving as such instructors not to exceed 20, and 
the noncommissioned officers not to exceed 40. A Swiss 
officer was to be inspector general of police, reporting 
to the dean of the diplomatic body at Tangier. Article 
12 of the final act provided as follows: 


The staff of instructors of the Shereefian police (officers 
and noncommissioned officers) shall be Spanish at Tetuan, 
mixed at Tangier, Spanish at Larache, French at Rabat, 
mixed at Casablanca, and French in the other three ports. 


This article, by locating French instructors at the 
military posts in the French zone of influence and 
Spanish in the Spanish zone, and by requiring both 
French and Spanish officers to be located in the mili- 
tary posts within the international zone of influence at 
Tangier and at Casablanca where there was no pre- 
dominating influence, recognized the French and Span- 
ish zones of influence, and gave these two States a legal 
right in Morocco of a preferential character. During the 
discussion in the conference on the organization of the 
police, Germany proposed that the conference should 


The “ Triple Principle” 351 


provide an international surveillance of a definite and 
efficient kind, and in this connection, on March 8, 
1906, caused a declaration to be made by its chief dele- 
gate on this subject. A translation of this declaration 
is as follows: 


We concur in the opinions expressed at the last session of 
the committee, showing the necessity of organizing in 
Morocco a police force placed under the sovereign authority 
of [the Sultan of Morocco]. We appreciate the reasons in 
favor of having recourse to officers chosen in France and in 
Spain and giving them an effective participation in this 
organization. But we can not admit that this cooperation 
should be limited to these two nations, without control 
by others and without any guaranty of international 
surveillance. 

It is evident that in a country at such a stage of civiliza- 
tion as Morocco the exercise of the only real force capable 
of maintaining order and guaranteeing the public security 
would give to the two powers which should have this ex- 
clusive privilege an exceptional position, which would make 
itself felt within the sphere of national interests and wouid 
endanger the principle of economic liberty for all. It is to 
be expected, in fact, that Morocco would fall into a condi- 
tion of dependency on these two States from which would 
result an inequality of situation unacceptable to the other 
nations. 

The interests of Europe in Morocco require that there 
should be the strongest guaranties. To protect and develop 
these common interests by a common action—such is the 
principle practiced with success in other international cir- 
cumstances. It suffices to call to mind the results obtained 
in Macedonia and in China by the collective efforts of the 
powers. 

We ask, then, that in the organization of the Moroccan 
police there should be such a cooperation of the powers 
foreign to Morocco as shall assure to all nations equality 
of economic treatment and the policy of the open door. 


352 The Question of Aborigines 


We shall examine every proposition looking toward this 
end, with the most earnest desire to see the conference 
reach an agreement on this important matter. (French 
Yellow Book, Proceedings of the Conference of Algeciras 


1906, p. 185.) 


The German Government, during the consideration 
in the conference of the provisions relating to the insti- 
tution of the Moroccan State Bank, proposed to have 
the administration placed in the hands of a council of 
surveillance (Conseil de Surveillance), a council of ad- 
ministration (Conseil d’ Administration), and a board 
of directors (Directotre). The council of surveillance 
was to be composed of the diplomatic representatives 
of the signatory powers at Tangier and a delegate ap- 
pointed by the Sultan of Morocco. It was to have the 
general superintending power. The council of admis- 
tration was to consist of two delegates ‘‘from each of 
the States, banks, or groups of banks’’ concerned. 
(French Yellow Book, Proceedings of the Conference 
of Algeciras, p. 185.) 

The provisions of the final act on this subject (arts. 
47 to 58) vested the ultimate power of surveillance and 
control in four of the major States, the plan of sur- 
veillance adopted being as follows: The bank was 
located at Tangier, the headquarters of the diplomatic 
body, so that they would be in a position to have a 
knowledge of its operations. The Moroccan Govern- 
ment was given the right and duty of surveillance by a 
high commissioner appointed after agreement with the 
board of directors, and the directors were controlled by 
meetings of the shareholders. Each of the twelve States 
had the option to become an equal shareholder with 
the rest, and each State electing to participate had an 
equal portion of the stock. Over all was placed a body 


The “Triple Principle” 353 


of four censors; the four most interested powers— 
France, Germany, Great Britain, and Spain—each ap- 
pointing one censor on the nomination of its State bank. 
Thus four powers were made the agents of the confer- 
ence to protect the interests of all concerned as respects 
the financing of Morocco. 

(For the Algeciras act, see Treaties and Conventions 
of the United States, vol. 2, pp. 2157-2183.) 

The United States ratified the Algeciras act, with a 
reservation made by resolution of the Senate which was 
as follows: 


Resolved, That the Senate, as a part of this act of ratifica- 
tion, understands that the participation of the United 
States in the Algeciras conference and in the formation and 
adoption of the general act and protocol which resulted 
therefrom, was with the sole purpose of preserving and 
increasing its commerce in Morocco, the protection as to 
life, liberty, and property of its citizens residing or traveling 
therein, and of aiding, by its friendly offices and efforts, in 
removing friction and controversy which seemed to menace 
the peace between powers signatory with the United States 
to the treaty of 1880, all of which are on terms of amity 
with this Government; and without purpose to depart from 
the traditional American foreign policy which forbids par- 
ticipation of the United States in the settlement of political 
questions which are entirely European in their scope. 


On February 9, 1909, the French and German Gov- 
ernments united in the following declaration concerning 
Morocco (Nouveau Recueil Général de Trattés, 3d ser., 
VON 2 praO)s 


The German Imperial Government and the Government 
of the French Republic, animated by an equal desire to 
facilitate the execution of the act of Algeciras, are agreed 
in defining the meaning which they attach to its provisions, 

23 


354 The Question of Aborigines 


with a view of avoiding all cause of misunderstanding be- 
tween them in the future. 

In consequence, the Government of the French Republic, 
entirely attached to the maintenance of the integrity and 
the independence of the Shereefian Empire and resolved to 
safeguard economic equality in Morocco, and therefore to 
interpose no obstruction to the German commercial and 
industrial interests there; 

And the German Imperial Government, pursuing only 
economic interests in Morocco, recognizing, on the other 
part, that the special political interests of France in Moroc- 
co are closely allied to the consolidation of the internal 
order and peace, and having the fixed intention not to 
obstruct these interests; 

Hereby declare that they will not pursue or encourage 
any measure of a nature to create in their favor, or in favor 
of any power whatever, any economic privilege, and that 
they will endeavor to associate their nationals in the business 
projects for which they [their nationals, ceux-cz] shall be 
able to obtain the concession or contract [I enterprise]. 


The provisions of the Algeciras act regarding the 
organization of the Moroccan police were by the terms 
of the act to continue for only five years after its rati- 
fication. The arrangement thus expired on December 
31, I911. In 1908, on account of internal troubles in 
Morocco and on the ground of protecting French in- 
terests, France had sent anarmy into Morocco. Later, 
Spain sent an army for the same purpose into the 
Spanish zone of influence, and the situation was in fact 
that of a joint military occupation and a partition of 
the State into districts under military rule. Germany, 
as next friend of Morocco and as a member of the Alge- 
ciras conference, objected to the situation, claiming it 
to be, as a military occupation and a de facto partition, 
a contravention of the Algeciras act. This legal objec- 


The “ Triple Principle ” 355 


tion it finally supported by sending a small vessel of 
war to the harbor of Agadir on the ground of protecting 
German interests. Another period of political tension 
occurred, which was brought to an end by an accord 
between France and Germany of November 4, I9I1I, 
which was open to the adhesion of the 12 powers signa- 
tory of the Algeciras act. This accord contained in the 
preamble a declaration of motives, of which the follow- 
ing is a translation: 


The Government of his Majesty the Emperor of Germany 
and the Government of the French Republic, in consequence 
of the troubles which have arisen in Morocco and which 
have demonstrated the necessity of following out in the 
general interest the work of pacification and of progress 
provided for by the act of Algeciras, etc. 


The first three articles, relating to the status of 
Morocco, were as follows: 


The Imperial German Government declares, that, pur- 
suing in Morocco only economic interests, it will not ob- 
struct the action of France in lending its assistance to the 
Moroccan Government for the introduction of all the re- 
forms—administrative, judicial, economic, financial, and 
military—which may be needful for the good government 
of the Empire: as well as for [establishing] new regulations, 
and modifications in existing regulations, incidental to such 
reforms. In consequence, it gives its adhesion to such 
measures of reorganization, of control, and of financial 
guaranty as, after accord with the Moroccan Government, 
the French Government shall deem it its duty to take to 
this end, under the reserve that the action of France shall 
safeguard in Morocco economic equality between the 
nations. 

In case France shall find itself under the necessity (Fr. 
serait amenée; Ger. sich veranlasst sehen sollte) of defining 


356 The Question of Aborigines 


and extending its control and protection (Fr. @ préciser et a 
étendre son contréle et sa protection; Ger. seine Kontrolle und 
seinen Schutz schairfer zum Ausdruck zu bringen und auszu- 
dehnen), The Imperial German Government, recognizing 
full liberty of action to France (Fr. reconnaisant pleine lib- 
erté d’action a la France; Ger. in Amerkennung der vollen 
Aktiensfretheit Frankreichs), and under the reserve that the 
commercial liberty provided for by previous treaties shall 
be maintained, will interpose no obstacle. 


The terms used—‘‘lending of assistance’”’ to the Mo- 
roccan Government, ‘‘control,’”’ and ‘“‘protection’’—are 
all terms of the law of conservatorship and guardian- 
ship. They necessarily imply the continued indepen- 
dence and sovereignty of Morocco. The expression 
‘‘full liberty of action’”’ as respects “‘control and pro- 
tection’’ is most nearly translated by the words ‘“‘plen- 
ary power,’’ which, as above shown, is an expression 
of the law of agency and trusteeship. 

The accord made a number of modifications and 
changes in the act of Algeciras. There was no reference 
to the first two principles of the “triple principle’’—the 
“independence and sovereignty of Morocco” and “‘the 
integrity of its domains.’’ By contrast, in article 4 
the third principle of ‘‘economic liberty without any 
inequality’’ was expressly affirmed in the following 
language: 


The French Government declares that, being firmly at- 
tached to the principle of commercial liberty in Morocco 
without any inequality, it will not lend itself to any inequal- 
ity, either in the establishment of customs, imposts, or other 
taxes, or in the establishment of tariffs or transportation 
by rail, river, or other method, and especially in all the 
questions of transit. The French Government will use its 
influence also with the Moroccan Government for the pur- 


The “ Triple Principle ”’ 357 


pose of preventing all differential treatment between the 
nationals of the different powers. 


By article 6, the subsidiary principle of letting public 
contracts by competition and adjudication was pre- 
served by the following provisions: 


The Government of the Republic obligates itself to take 
care (Fr. s’engage a veiller; Ger. verpflichtet sich zu sorgen) 
that the works and supplies necessitated by the eventual 
construction of roads, railroads, harbors, telegraphs, etc., 
shall be let on contract by the Moroccan Government by 
the method of adjudication. It binds itself also to take care 
that the conditions imposed on adjudications do not place 
the nationals of any power in a situation of inferiority. 


Article 14, relating to the adhesion of the other 
powers, was as follows: 


The present accord shall be communicated to the other 
powers signatory of the act of Algeciras, with whom the 
two Governments bind themselves to lend mutually their 
aid for the purpose of obtaining their adhesion. 


(For the Franco-German accord of Nov. 4, 1911, see 
Nouveau Recueil Général de Traités, 3d ser., vol. 5, pp. 
643-650; also Brit. Parl. Papers, 1912-13, vol. 122; 
(Morocco No. 4, 1911) Cd. 6010.) 

If there could be any question concerning the legal 
effect of these words as recognizing the sovereignty and 
independence of the people of Morocco and providing 
for that State a temporary conservatorship which 
should be executed by a continuous and gradual reduc- 
tion in the intensity of the control, as Morocco should 
improve under the conservatorship, and by an ultimate 
withdrawal of France from Morocco, this question 
would seem to be set at rest by the letter of October 


358 The Question of Aborigines 


17, 1911, addressed by M. de Selves, French Minister 
of Foreign Affairs, to the Sultan of Morocco, in which 


it was said: 


The troubled situation of the Shereefian Empire during 
the last months, and the political events consequent upon 
it, have led the French and German Governments to exam- 
ine the conditions under which the work of pacification and 
progress contemplated by the act of Algeciras, and which 
interests not only the Moroccan Government but the other 
States having relations with it, ought to be carried on. 
The two Governments have come to an agreement on this 
subject, which is set forth in detail in the arrangement, 
the text of which I have the honor to send Your Majesty 
herewith and which will later on be communicated to the 
powers signatory of the convention of Algeciras. It has 
been recognized by this accord that the collaboration of 
France requested by Morocco, and which has already been 
assured to Morocco under the recent and decisive condi- 
tions, responds to the necessities of the internal and exter- 
nal situation of Morocco; that it cannot endanger foreign 
interests; and that it is of a nature favorable to the devel- 
opment of the Shereefian administration and the economic 
progress of the Empire. 

All difficulty on this point being thus cleared away, the 
French Government will hereafter be in a position to lend 
its entire cooperation to the Moroccan Government, and 
thus to put into effect completely the previous accords 
concluded between them several years since. It will bring 
to this work those dispositions toward Morocco which are 
known to Your Majesty and which have never ceased to 
inspire the French policy. It continues to be concerned, 
first of all, to strengthen the authority of the Moroccan 
Government (l’autorité Makhzénienne), to furnish it the re- 
sources of which it has need, to facilitate by its counsels 
and by its agents the putting in force of the reforms already 
decided upon by Your Majesty. It will regard it as its 
duty, as respects matters with which it is concerned, to 


The “ Triple Principle” 359 


respect scrupulously the customs, the traditions, and the 
religion of the Mohammedan people. Your Majesty, then, 
has no cause to doubt the fixed purposes which the French 
Government has formed, to cooperate with the Moroccan 
Government according to the sentiments of reciprocal loy- 
alty and confidence already manifested by significant acts, 
and which will equally determine its conduct toward the 
successor whom Your Majesty shall designate. (Nouveau 
Recueil Général de Traités, 3d ser., vol. 7, pp. 108, 109.) 


The adhesion of the United States to the Franco- 
German accord of I91I was made by written communi- 
cation from the Secretary of State (Mr. Knox) to the 
French ambassador at Washington (M. Jusserand), of 
December 15, 1911. The following is a translation of 
the material part of this letter: 


I have the honor to inform your excellency that, in con- 
formity with the traditional foreign policy of the United 
States, which forbids the participation of the Federal Gov- 
ernment in the regulation of political questions of a purely 
European order, this Government is bound to abstain from 
expressing any opinion for or against any of the provisions 
of the Franco-German accord relative to Morocco which 
may be regarded as having a political character. 

As regards the desire of the Government of the French 
Republic to have the United States adhere to the articles of 
this accord relative to commercial rights and the adminis- 
tration of justice, I take the liberty of calling the attention 
of your excellency to the fact that the adhesion of the 
United States as respects these articles will involve a modi- 
fication of our present rights as these are established by 
our treaties now existing with Morocco; which, under our 
Constitution, can be done only by and with the advice and 
consent of the Senate of the United States. 

I have, however, the pleasure of informing your excel- 
lency that, in conformity with the desire expressed by the 
French Republic, the Department of State will be disposed, 


360 The Question of Aborigines 


at any time when it may be convenient, to engage in nego- 
tiations with a view to concluding such new conventional 
arrangements as shall seem proper, for the purpose of modi- 
fying our rights of exterritoriality and the rights of Ameri- 
can protégés in Morocco according to the ideas indicated in 
the Franco-German accord; and, in a general way, to adhere 
to the other principles of the accord, provided that the 
commercial and other advantages which are assured to us 
by existing treaties are maintained. (Nouveau Recueil Gén- 
éral de Trattés, 3d ser., vol. 7, pp. 131, 132.) 


The treaty between France and Morocco of July 20, 
1912, ‘‘for the organization of the French protectorate’”’ 
in Morocco, as a treaty, necessarily implied the inde- 
pendence and sovereignty of Morocco. (For this treaty 
and the act of the French Parliament of July 20, 1912, 
ratifying it and authorizing its execution, see Journal du 
Palais, Lots Annotées, new ser., vol. 3 (I191I—I9Q15), Pp. 
543.) 

The treaty between France and Spain of November 
27, 1912, made “‘for the purpose of defining the situa- 
tion of France and Spain, respectively, with regard to 
the Shereefian Empire,’’ made provision for Spain tak- 
ing over control and protection of the so-called Spanish 
zone, and recognized Tangier and the adjacent region 
as an international district. (Journal du Palais, Lots 
Annotées, new ser., vol. 3 (IQII-I9I5), Dp. 544-547.) 
(For English translation, see Supplement of Ameri- 
can Journal of International Law, vol. 7 (1913), pp. 
81-93.) : 

The same legal terms were used in this treaty as in 
the Franco-German treaty—‘‘lending of assistance’’ to 
the Moroccan Government, ‘control,’ ‘‘protection,”’ 
“obligation to care for,’ etc. This treaty did not pur- 
port to be intended as amendatory of the Algeciras act. 
It made no provision for the adhesion of all the powers 


The “ Triple Principle ” 361 


signatory of that act. Article 29 provided that ‘‘the 
present convention shall be notified to the Governments 
signatory of the general act of Algeciras.’ The as- 
sumption of the parties evidently was that France had 
the right, as agent of the international conference, by 
the terms of the Franco-German accord of 1911 adhered 
to by the signatory powers, and as conservator of 
Morocco, to grant to Spain the right to act as agent of 
the conference and to exercise the office of conservator 
of Morocco in a certain district, provided no one of the 
signatory powers objected to the delegation and ap- 
pointment or to the territorial partition thus made. 
It would seem that the personal character of such an 
agency and such an office would render doubtful the 
validity of such action. 

The “‘triple principle,”’ of ‘‘the sovereignty and inde- 
pendence”’ of each State once recognized as a State, 
‘‘the integrity of its domains,’’ and ‘‘economic liberty’”’ 
for all the States in their dealings with the State, ‘‘with- 
out any inequality,’ would seem to be a universal 
principle of the social law of nations. It conserves the 
statehood of States having statehood; it makes for the 
recognition as States of peoples who are universally 
recognized as entitled to statehood; it prevents parti- 
tion of existing States without the consent of the State 
partitioned and of all other States; it prevents the com- 
mercial exploitation of small States and enables strong 
States to cooperate for the common good, instead of 
being exposed to be ruined commercially by unfair 
competition practiced against them or to be ruined 
morally by engaging in unfair competition. 

If this ‘‘triple principle” is of a universal character, 
it is especially important as applied to the relations of 
civilized States to aboriginal tribes. According to this 
principle, the only legal purpose which a civilized State 


362 The Question of Aborigines 


can have in acquiring sovereignty over territory in- 
habited by aboriginal tribes is to act as conservator for 
them and to aid them in raising their status as rapidly 
as possible and to the highest degree possible for them. 
The aborigines have thus, under the law of nations, a 
right of protection and aid in raising their own status. 
They are assured the rights and privileges of those of 
higher grade when they merit elevation to this grade. 
These rights of aborigines all States are bound to ob- 
serve. Civilized States can no longer partition at will 
the territory acquired by them by occupation and 
inhabited by aboriginal tribes, and no partition can 
legally be made without the consent of the States con- 
cerned and the common consent. Exploitation of any 
kind attempted against aborigines is met and halted 
by the principle of “‘economic liberty without any in- 
equality”; and a legal basis is established for preventing 
or penalizing unfair competition. 

Viewing the international action taken by the twelve 
powers and Morocco in its purely legal aspect, there- 
fore, it would seem clear that this action was intended 
to have the effect, and did have the legal effect, not to 
destroy the statehood of the people of Morocco, or to 
demote that State to an inferior status, but to place the 
people of Morocco, as a State, under a temporary and 
conditional conservatorship for the purpose of reform- 
ing the constitution, laws, and administration as might 
be needful according to the joint opinion, and enabling 
the people to exercise the rights and fulfill the duties of 
an independent State. From the legal standpoint, 
therefore, there would seem to be nothing in this joint 
international action capable of being used as a prece- 
dent unfavorable to the conservation and development 
of aboriginal tribes. The action of the Algeciras con- 
ference in formulating and declaring ‘‘the triple prin- 


The “ Triple Principle ” 363 


ciple’’ will no doubt prove to be of great importance in 
the development of the law of nations, as giving a con- 
crete and practical interpretation of the rights and 
duties implied in mutual and reciprocal trusteeship. 


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INDEX OF JUDICIAL CASES 


Amedie, case of, 138, 139, 140 

American Insurance Company v. 
Canter, 57, 58, 59 

Antelope, case of, 26, 154 


Binn v. United States, 58 


Campbell v. Hall, 65 

Canter v. American Insurance, 57 

Cherokee Nation v. State of 
Georgia, 38 

Cherokee Nation v. Southern 
Kansas Railway Company, 


47 

Choctaw Nation v. United States, 
208-209 

Curtis Act, 51 


de Graffenried v. Woodward, 50 
Diana, Dodson on, 140 
Downes v. Bidwell, 57, 328 


Fletcher v. Peck, 114 
Fortuna, case of, 139 


Grant, William, on the Amedie 
case, 138 


Heff, Matter of, 47 
Holliday v. United States 


Johnson v. McIntosh, case of, on 
relationship of European dis- 
covers to aboriginal tribes of 
America, 25, 36-37, 115 


Kagama v. United States, 44, 52 
Kepner v. United States, 61 


Lincoln v. United States, 62 


Madrazo v. Willis, 153 
Murphy v. Ramsey, 47 


Neely v. Henkel, 327 
Nice v. United States, 51 


Perrin v. United States—powers 
of Congress to prohibit the 
introduction of intoxicating - 
liquors into the Indian 
Reservation, 50 

Pollard v. Hagan, 321 


St. Catharine Milling Company 
v. The Queen L. R., 117 
Scott, S., comments on Amedie, 

139 
Scott, William, on Diana case, 140 
Shiveley v. Bowlby, 320 
Slaughter House, case of, 50 


Tiger v. Western Union Company, 
49 


United States v. Holliday, 52 
United States v. Kagama, 44, 52 
United States v. Nice, 51 
United States v. Rogers, 43 


Williams v. Johnson, 51 

Wilson v. Johnson, 51 

Woodward v. de Graffenried, 50 

Worcester v. State of Georgia, 45, 
209 


365 


an 


INDEX OF SUBJECTS 


Abbott, C. J., address on British 


statute prohibiting slave 
trade, 153 

Aboriginal tribes, in non-self- 
governing colonies and 


dependencies, 68 
principles of relationship of, 
with civilized states, 52-55 
Aborigines, appreciation of value 
of, as laborers and adoption 
of, in South Africa, 125 
as wards of the State which 


exercises sovereignty over 
them, 31-55 
as used by Great Britain, 


France, Germany, Canada 
and the United States, 17 

corporal punishment of, 162 

defined, 3-16 

question of, in the law and 
practice of nations, 3-18 

is sanctioned as term in law and 
practice of nations, 9 

rights of, in respect to the land 
which they inhabit, 114 


civilized states, relation to, 
174-181 
Acts of Parliament on African 
slavery, 7, 8 


Adams, 24, 114 
Africa, eastern, Italy’s possessions, 


79 
west, French possessions, 72 
German territory in, 85, 88 
negro colonization, 25 
native education, 126 
South, report of native affairs 
commission, 126 
union of South Africa, 67 
union of, and correspondence 
relating to native Land Act, 
126 
African Association, 22 
African Company of Merchants, 
21 


Aix-la-Chapelle, 150, 151, 152 
Congress of, 23 
Alaska, 62 
ceded to the United States, 207 
Algeciras Act, ratified by the 
United States, 353 
provision of, regarding the or- 
ganization of the Moroccan 
police, 354 
modification of, 356-359 
Algeciras, Conference of, on 
Morocco, 338-339 
Declaration of, 348-351 
Program of, 345-348 
Algeria, French Territory, 70 
America, declaration of funda- 
mental rights, 20 
Arntz, E.R. N. Revue de Droit 
International et de Législa- 
tion Comparée, 311 
Articles of Confederation on the 
United States and the In- 
dians, 21 
Australia, self-governing colonies 
in, 68, 69 
Austria, France, Great Britain, 
and Russia, Conference at 
London and Aix-la-Chapelle, 
150 
Austria, slave trade, views ad- 
vanced by Metternich and 
Castlereagh, 146 


Banning, Emile, L’Afrique et la 
Conférence Géographique de 
Bruxelles, 221-223 

Bantu languages and people, 53, 


54 

Bayley, J. Slave trade in the 
Law of Nations, 154 

Beaulieu, Paul Leroy, De la Col- 
onisation chez les Peuples 
Modernes—(defense of ‘the 
French system against criti- 
cism of Bismarck), 104-106 


African slave trade, prohibition | Belgium, Constitution of, 75, 76 


and abolishment of, 7 


Congo, charter of, 76, 78 


367 


368 


Belgium, Constitution of—Cont’d 
corporal punishment of abo- 
rigines, 165 
naturalization of aborigines, 79 
unwritten law in, 79 
Berlin African Act, four declara- 
tions of, on the Congo, 252 
Berlin African Conference, final 
act of, 17, 28, 29 
declaration against slave trade, 
My eee Bl Oa 
duties of civilized states as 
guardians of aborigines, 174 
treaty with International Congo 
Association, 232 
fourteen states represented at, 
240 
institution by, of a middle 
African Zone of International 
Jurisdiction, 239-250 
effect of the middle African 
Zone on the law of nations 
regarding aborigines, 250-255 
failure of proposal for neutral- 
ization, 256-281 
a. neutralization, 256-281 
b. surveillance, 271-281 
Bill of Rights as contained in the 
Constitution of the United 
States, 59-61 
Bismarck, statements on treaty 
of trade and navigation with 
Korea, 89-91 
on ‘‘open door’’ policy in the 
Congo, 214 
on Congo flag, 234 
on Congo as a State, 235-244 
Blanchard, M. Georges, Forma- 
tion et Constitution politique 
de L’Etat Indépendant du 
Congo, 225-230 
Braithwaite, George, Japanese 
Rule in Formosa, 169 
British King, administrative 
powers of, in council, over the 
colonies and dependencies, 
65, 66 
judicial powers of, 67 
British and Foreign Aborigines 
Protection Society, 8, 16, 26 
British and Foreign Anti-Slavery 
Society, 8 
British Government, on the terri- 
tory of the Indians, 19, 20 
proposal as terms of peace to 
Indians, 24 
on negotiations to import fire- 


Index 


arms and intoxicants to the 
Pacific Islands, 287, 288 
British Parliament Committee on 
Aboriginal Tribes, 39, 195 
Brussels African Conference, 17, 
29, 160, 161, 175 
convened at the invitation of 
the Belgium Government, 294 
preamble of the African Act, 
295-297 
institutions intended to insure 
the execution of the General 
Act, 300, 301 
of the exchanges between the 
Governments of documents 
and information relating to 
slave trade, 301, 302 
establishment of an Interna- 
tional Bureau for the surveil- 
lance of African aborigines, 
393-305 } 
African Act ratified by the 
United States, 307 
Brussels, International Colonial 
Institute, 189 
Bureau of non-Christian tribes in 
the Philippines, 63 
Busago, 54 
Buxton, 8, 219, 220 


California bought from Mexico, 47 

Canada, Indian title to land in, 
117-119 

Canary Islands, 82 

Castlereagh, Lord, 141, 144, 146, 
I51 

proposed plan to boycott states 

not joining in abolition of 
slavery, 147 

Century Dictionary, definition of 
aborigines, 5 

Charlemagne, III 

Cherokee Reservation for granting 
right of way to railroads, 47 

Church Missionary Society, 12, 
40, 4! 

Civil War, 37 

Cleveland’s message to Congress, 
on the Congo Conference, 
284-285 

Cochin China, 72 

Colonial Land and Emigration 
Commissioners, 41 

Colonies, self-governing, 68 

Colonies and dependencies, organic 
act for, 67 

Colonist, definition of, 4 


Index 


Committee on Indian Affairs in 
the United States House of 
Representatives, 120-124 

Committee on Indian Affairs, 
report on recommencing re- 
moval of southern tribes to 
west of the Mississippi, 33- 
36 

Commonwealth of Australia, 67 

Conflict between colonists and 
natives of New South Wales, 
42 

Congo, Belgium, 75 

Congo, International Association, 
88, 212 

Congo, Belgium, corporal punish- 
ment of the aborigines, 165 

Congo, French, 166 

Congo, right of sovereignty over 
by the United States, 213 

right of freedom of navigation 
of international rivers, 213, 


214 
basin, ‘‘open door’’ policy, 
214-216 


Congo Free State, 246-256 
Congo Free State Zone, neutral- 
ization of, 256-270 
surveillance of, 271-281 
Declaration of the Powers of 
Surveillance, 271-273 
an International Commission of 
Navigation, 273-278 
an International Commission of 
General Power of Surveil- 
lance, 278-281 
Cleveland’s message on, to 
Congress, 284-285 
Morgan’s resolution on, 285, 
286 
Congress of Aix-la-Chapelle, 23 
Congress, powers of, over colonies 
and dependencies, 56 
rights of, to decide when guard- 
ianship of Indians by United 
States Courts shall cease, 49 
Congress of Vienna, on abolishing 
slavery, 19-22 
peace with Great Britain, 23 
proposals for the abolition of 
slave trading, 26, 149 
treaty of British Government 
with France, 141-14 
proposal of the British Govern- 
ment to establish a permanent 
Commission of Surveillance, 
145 
24 


369 


Constitution of Portuguese 
Republic, 82, 83 

Constitution of Japan, 83 

Constitution, as dealing with 
Indians and slave states, 21 

meaning giving jurisdiction in 

controversies in which a state 
of the United States, or a 
citizen thereof, and a foreign 
state, citizen or subject there- 
of, are parties, 38 

Constitution of Germany in force 
in 1884, 84 

Cooperation versus compulsion in 
organizations of the Society 
of Nations, 269-281 

Courcel, Baron de, on Congo 
State, 234 

relation of the aborigines of 

Congo Free State, 246-256 

Court of the King’s Bench in 
1774, 65 | 

Cuba, sovereignty over, by the 
United States, 326 


Dawes Commission, 51 
Declaration of Great Britain on 
the Congo Free State, 234 

Declaration of Independence, 
preamble of, 20 
fundamental rights of individ- 
uals, 137 
French, 137 
Declaration of the United States 
on Congo Free State, 233 
Declaration of International 
Congo Association, 228-229, 


233 

Declaration of Rights, French, 
I79I, 21 

Powers of Surveillance of the 

Congo, 271-273 

Dernberg, Dr., 169 

Despegnet, Franz, Essai sur les 
Protectorates, 79 

Doctrine, of intervention for 
humanity, 311-335 

Dodd, W. F., Modern Constitu- 
tions, 79 

Dodson, Admiral, Report on the 
Slave Trade, 138, 139 

Dominion of Canada, 67 

Dominion et Colonisation (Jules 
Harboux), 74 

Duties of Civilized States as 
Guardians of Aborigines, 174- 
190 


370 


Effect of fair dealing combined 
with Christian instruction, 
on aborigines, II, I2, 13 

Effect of Europeans upon abo- 
rigines, IO 

Eight Courts, on abolition of 
slave trade, 148 

Emperor of France, powers of, 70 

Equitable treaty of William Penn, 
12 

Erythraea, 79 

European Slave Trade, 20 


Fabian Society, 269 
Fletcher v. Peck, relation of 
Indian tribes to soil, 114 
Formosa, Japanese rule in, 83 
corporal punishment by Japan- 
ese, 169 
report of Bureau of Aborigines 
affairs, 83 
Founding of the independent State 
of Congo, 212 
France and Spain, treaty between, 
360 
France, abolition of slaves, 157 
constitution in colonies, 69, 70 
Republic and_ constitutional 
laws of, 71 
treaty with Morocco, 360 
Franco-German Treaty, 359-363 
Frelinghuysen, to Tisdel, on valid- 
ity of claim of sovereignty of 
United States over the Congo, 
212-213 
to Kasson, on freedom of trade 
in Congo, 213-215 
on declaration of International 
Congo Association, 229 
letter from Mr. Tisdel, 231 
French Colonies, establishment of 
the ministry in, by statute of 
French Parliament, 72 
Declaration of Rights, 21 
Government, declaration on 
Morocco, 354 
Frere, Bartle, 223 
Ferry, M., 230 


Gellman, H., Relation of Germany 
to its protected territories, 
TIT te 

Genoa, 86 

Germany, 84 

Germany, Colonies of, juridical 
situation of, as respects mat- 
ters of public law, 95 


Index 


juridical situation in the do- 
main of private law, penal 
law, procedure, and _ the 
organization of the courts. 
Relations between the co- 
lonial law and the consular 
jurisdiction, 96-98 
legislation for the aborigines 
and other colored inhabitants, 
98, 99 } 
right of making ordinances dele- 
gated to the chancellor of the 
Empire, 99 
delegation by the Emperor, 99, 
100 
delegation by statute, 100 
right of making ordinances 
delegated to colonial gov- 
ernors, 100, IOI 
signification and exercise of the 
““Schutzgewalt,’’ 92 
exercise of the legislative power 
of the colonies, 93 
colonial council, IoI, 102 
council of governors of different 
colonies, IOI, 102 
Political History of, by Zimmer- 
mann, 107 
policy, conclusion of, 107-113 
corporal punishment in south- 
east and southwest Africa, 
167-169 
German Emperor, extent of power 
in making ordinances relative 
to various subjects of colonial 
law, 93, 94 
German law concerning the judi- 
cial relations of the protected 
territories and circumstances 
which led to the building of 
the German colonial policy, 85 
German law of consular jurisdic- 
tion, 86, 87, 92 


German protected _ territories, 
act respecting the jural rela- 
tion of, 9I 


Law (Reichsgesetzblatt, 92) 

German government, declaration 
on Morocco, 354 

Gibbs, Sir George, governor of 
New South Wales, 39 

Girault, Arthur H., on organic 
laws of the French colonies, 
71, 72 

Gladstone, 8 

Grant, President, on 
problems, 27 


Indian 


Index 


Grant, William, on the case of 
Amedie, 138 
Great Britain, abolishment of 
slavery in the colonies, 156 
legislative powers of Parliament 
over colonies and depend- 
encies, 63 
organization of reform, 7 
treaties with Spain, Portugal 
and Holland, on reciprocal 
rights to search ships sus- 
pected of slave trade, 151 
Guadaloupe, 71 
senator given to, 73 
Guadaloupe, Hidalgo, 47 
Guiana, a penal colony, 71, 73 
British New, land system of, 
put in force by British Gov- 
ernment, 133-135 


Hague Conference, Ist, 279 
2nd, 280 
Harbord, Jules, 74 
Hawaii, 62 
Heff, matters of, 1905, 47 
Hereros and Hottentots, war with, 
106 
Humboldt, Baron, 143 


India, French, 73 
Indian Affairs, Committee on, in 
the House of Representatives, 
120-124, I9I-195 
Indian colonization, plan of, 25 
tribal right by treaty, 25 
aaa with tribes forbidden, 
287 
Indians, 17 
breaking up of tribal relations, 
and charging them with the 
rights of citizens, 48 
commerce with, 52 
commissioners, 27, 206, 207 
country, 24 
emancipation of, from United 
States guardianship, 48 
guardianship of, by the United 
States, 45, 46, 49 
land occupied by them, as 
treated by the natives of 
Europe and Great Britain, 
116, 117 
possessory rights of their land, 44 
sale of liquor to, 48, 51, 52 
title of land to, in Canada, 117- 
11g 
Wards of the nation, and gov- 


371 


ernment of, by the Act of 
Congress, 45 
Indians, Cherokee, 43, 45 
Indian Reservation, power of 
Congress to prohibit the 
introduction of intoxicating 
liquor into, 50 
allotment of tribal lands, 51 
murder of one Indian by an- 
other on Indian reservation, 
4h 
punishment of crimes com- 
mitted on, 43 
Indies, Netherlands, East, 75 
Indo-China, 72 
International action since the 
Berlin African Conference 
affecting the Law of Nations 
regarding the aborigines, 282— 
310 
International African Association, 
212,219, 220 
International Colonial Congress 
held in Paris, and_ states 
participating in, 158 
International Colonial Institute 
of Brussels, 180 
International Commission, project 
for, of surveillance to advise 
powers in their cooperative 
measures for the abolition of 
slave trade, 148-150 
International Commission for the 
exploration and civilization 
of central Africa, 221-223 
International Conference at Paris, 
176 
program of, 177-179 
resolutions adopted on 
law, 181-182 
resolutions adopted on criminal 
law, 182-183 
on material condition of the 
aborigines, 183-187 
on moral condition of the 
aborigines, 188-189 
International Congo Association, 
29 A212; 224,220,226 
Manifesto of, 232 
treaties of, 233 
recognition of, by the United 
States, 229 
recognition of, by France, 230 
first communication of, 234 
flag of, 224, 228 
International Law, Institute of, at 
Landanne, 289 


civil 


372 


International Law—Continued 
on occupation of territory under 
title of sovereignty, 289-291 
resolutions dealing with the 
Law of Nations, 291 
Institution by the Berlin African 
Conference of a Middle 
African Zone of International 
Jurisdiction, 239 
effect of this action on the Law 
of Nations regarding abo- 
rigines, 250-255 
Italy, Constitution of, 79-81 


Japan, political development of, 
8 


3 

corporal by, in Formosa, 169 
rise of, as a modern power, 83 
rule in Formosa, 169 

Jefferson, 24 

Johnston, Sir H. H., 53 
submission of the King Mwanga, 

126-128 


Kamerun, 167 
Kasson, Mr., United States minis- 
ter to Germany, 213 
declaration of the policy of the 
United States on the ‘‘open 
door’’ in the Congo, at the 
Berlin African Conference, 
215-216 
on rights of aborigines in Congo 
Free State, 251 
on freedom of commerce in 
Congo basin, 253 
on neutralization of the Middle 
African Zone of International 
jurisdiction, 257-258 
Kiau Tschau, 107 
Kobner, Otto, Einftthrung in die 
Kolonialpolitik, 85 
concerning German 
administration, 92-93 
Korea, Reichstag debate on the 
treaty of the trade and navi- 
gation, 88 
Kuhn, Hellmuth, Die Deutschen 
Schutzgebiete, 112-113 


colonial 


Labrador, Chevalier, 142, 145 

Land fund to the protection of the 
aborigines of New South 
Wales, 42 

Lannoy, Charles de, on colonies, 


76 
on Congo Colonial Council, 77 


Index 


Law of Nations, rule of aborigines’ 
personal rights to land, 128 
Law of Humanity, Rougier on, 
313-318 
attitude of the United States 
towards, 318-322 
toward aboriginal tribes, 322- 
328 
Legal effects between civilized 
states or their citizens, and 
aborigines, 191-211 
Leopold II, 219, 223, 224 
President of the New Congo 
States, 235 
Leseur, M., 177 
Liberia, 27 
Lowenhielm, Count, 143 


Madagascar, 72 
forced labor, 166 
Madrid, Conference of 1880, 87, 88 
Conference of, on Morocco, 
339-343 
Conference, final act of, 343-344 
Malet, Edward, 234 
on freedom of religion in Congo 
Free State, 245 
on freedom of commerce in 
Congo Free State, 252-254 
Maori tribes, 195 
Marnoco e Souza, 82, 87, 88 
confederation of, 231 
Marshall, Chief Justice, doctrine 
on Indian tribe rights, 25 
on slave trading, 26 
on relationship of European 
discovers to aboriginal tribes, 
36 
opinion on Case of Antelope, 
154-156 
on Case of Campbell and Hall, 
65 
on Indian title to land, 114-116 
regarding meaning if Constitu- 
tion of United States, giving 
jurisdiction in controversies 
in which a State of the United 
States, or citizen thereof, and 
a foreign state, citizen, or 
subject thereof, are parties, 
38 
Martinique, 71-73 
Metternich, Prince, 143-144 
Mexico, Indian reservation bought 
from, 47 
Monroe, President, 24, 25, 27-28, 
Bi aelo 


| Index 


Monroe, President—Continued 
message recommending that 
the United States’ agents 
be sent to Africa West coast, 
to oversee the settlement of 
the negroes rescued from 
slave traders, 153 
Morgan, Senator, resolution to 
Congress on Congo Free 
State, 285-286 
Moroccan State Bank, 352 
Morocco, 82 
intervention of, by France, 313 
as a minor state, 336-344 
declaration by French and 
German Government, 353,354 
three articles relating to Stat- 
utes of, 355 
treaty between France and, 360 
Morse, Jedediah, report of, to 
Secretary of War, on removal 
of Indians to reservations, 
124-125 
relation of aboriginal tribes to 
sovereign state, 31 
Moynier, Gustave, 220 
Murphy, J. H: P., papers on 
British New Guinea, 133 
Mwanga, King, 56, 126 


Nation, Rule of Law of, aborigines’ 
personal right to land, 128 
Negroes, colonization of, 25 
settlement of, on West African 
coast, 27 
Netherlands, Constitution, 74-75 
East Indies, 76 
States General, 76 
New Caledonia, 72 
New Holland, race of, preservation 
and education, 42 
New Zealand, self-government in, 
69 
Maori tribes, 195 
Nigeria, northern, law of abo- 
rigines, personal right to land, 


129-132 
(rights and obligations of the 
government regarding the 


whole land, and requirement 
of land by the government 
for public purposes) 

Nile Province, 54 

Northwest Territory, ordinance 
or government of, 1787, 20 

policy of dealing with the Indian 

tribes in, 24 


373 


Noske, Gustave, action of Social 
Democratic Groupe, (Kolon- 
ialpolitik und Socialdemo- 
kratic), 106 


Organic Laws of French Colonies, 
by Gigault, 71 

Oxford Dictionary, definition of 
aborigines, 6 


Palmella, Count of, 142, 147 
Panama Canal Zone, 62 
Papers relating to the aborigines, 
Australian Colonies, 39 
Paris, treaty of, 148, 149 
International Conference, 176 
Parliament, Government of Brit- 
ish, by Todd, 64 
Peace of 1763, 19 
Penn, William, 12 
Phelps, Alison, on Congress of 
Aix-la-Chapelle, 152 
Philippines, 62 
Commission, 59, 63 
Commission and Proclamation, 
329-332 
Government act, 63 
non-Christian aboriginal tribes, 


63 
United States, tutorship of, 190 
Elihu Root on, 333, 334 
Porter, R. P., rise of modern power 


in Japan, 83 
Porto Rico, 62 
Porto Rico and _ Philippines, 


sovereignty over by the 
United States, 326 

Portugal’s claim to the Congo, 218 

objections to join plans to boy- 

cott states not joining in the 
abolition of slaves, 147,148 

Portuguese Republic, 82 

Posada, Adolpho, Spanisches 
Staatsrecht, 82 

President, plenary powers of, dur- 
ing the period of acquisition 
and pacification, 61 


Quatrefages, M. de, 233 

Question of aborigines in law 
and practice of nations, 18 

Question of legality of slave trade 
under the Law of Nations, 


153 


Reciprocal right of search, 26 
Red Sea, 80 


374 


Reform organization of Great 
Britain, 7 
Reichstag, debate on treaty of 
trade and navigation in 
Korea, 88 
Social-Democrats and Catholic 
parties, 106 
on corporal punishment of the 
aborigines, 168 
Relation between the power over 
aboriginal tribes and the 
power over colonial generally, 
56-83, 84-113 
Relations between the colonial 
jurisprudence established by 
the act of the German Legis- 
lature and that established by 
imperial ordinance, 93, 94 
Report of the Resolution of the 
House of Commons, 1837, 
term aborigines is sanctioned 
as a term of law and practice 
of nations, 9, IO 
Frances, La _ protection 
Diplomatique et Consulaire, 
8 


Rey, 


Rhodesia, corporal punishment of 
aborigines, 167-173 
Rights of aborigines as respects 
the land inhabited by them, 
I14-I 
Rights of aborigines to personal 
liberty and personal property, 
136 
a. Enslavement of aborigines, 
136-238 
b. Limit set by the Law of 
Nations to the exercise by a 
civilized state of its authority 
as guardian of aborigines, 
162-238 
Rolin, Henri, 169 
Root, Secretary, on Berlin African 
Act, relative to the guardian- 
ship of the aborigines, 308 
on the Philippines, 333-334 
Rougier, on Law of Humanity, 
313-318 
Royal proclamation of 1763, 19 
Russell, Lord John, to Sir George 
Gibbs, views on relations 
between Great Britain and 
aboriginal tribes under its 
sovereignty in 1840, 39-43 
Russia, 23 


Samoan Islands, 30 


Index 


Conference on, at Washington, 

292-294 

San Domingo, 62 

Schutzgebiete, 85 

Scott, James Brown, Resolution 
of the Institute of Interna- 
tional Law dealing with the 
Law of Nations, 291 

Scott, S., comments on the Amedia 
case, 139 

Scott, William, on the Diana case, 


140 
Secretary of the Interior, 62 
Secretary of War, charges of, 59 
Select Committee on Aboriginal 
Tribes, 8-16 
Senegal, 72 
Serpe, M. de, against importing of 
spirituous liquors and gun- 
powder in the Congo terri- 
tory, 245 
Sierra Leone Company, 21, 22 
Slave trade, proposed plan ad- 
vanced by Castlereagh, to 
boycott states not joining in 
the abolition of slave trade, 
146 
objection to the same by Portu- 
gal and Spain, 147-148 
project for an international 
commission of surveillance to 
advise the powers in their 
cooperative measures for the 
abolition of, 148-150 
Conference held at London and 
Aix-la-Chapelle, by France, 
Great Britain, Austria, and 
Russia, 150, I51 
treaties by Great Britain with 
Portugal and Holland, on 
reciprocal rights to search 
ships suspected of _ slave 
trade, 151 
Act of United States, 1794, pro- 
hibiting American citizens 
from slave trade with colonies 
of foreign states, 138 
abolition of, in England, 1833, 
26 
European, 1763, 20 
horror of, increased, 23 
Slavery, abolished in French 
Colonies, 21 
restoration of, by Napoleon, 21 
legality of, under the Law of 
Nations as before the British 
Courts, 153 


Index 


Slavery—Continued 
abolishment of, in colonies of 
Great Britain, 156 
Ante, Congress of, 157 
abolishment of, in France, 157 
Snow, Alpheus H., 69 
on administration of depend- 
encies, 70, 71, 108 
Social-Democrats and Catholic 
parties in the Reichstag, 106 
Southern Kansas Railroad, 47 
Souza, 82 
Spain, United States treaty with, 
on territories ceded to, 328 
Constitution of, 81 
powers of the King, 81, 82 
objection to joining plan to boy- 
cott states refusing to join 
in the abolition of slavery, 147 
Spanish Colonies, 82 
Stanley, H. M., discoveries in 
Africa, 28, 212, 215-224 
proposal for territory in Congo 
Free State, 242-243 
States—corporations of colonizing, 
letter of patent granted, 87 
Stengel, Karl von, Die Rechtsver- 
haltnisse der Deutschen 
Schutzgebiete, 85 
Story, Joseph, 114 
Supreme Court, judicial powers 
granted by the United States 
involving relationship arising 
in the colonies and the 
dependencies, 62 
Suriman, Netherlands Colony of 
forced labor, 166 


Takikoshi, Gosaburo, Japanese 
rule in Formosa, 83, 169 
Taney, Chief Justice, upholding 

the jurisdiction of the United 
States Courts to punish 
crimes committed in Indian 
territory, by members of the 
Indian tribes, 43 
Test cases on Indian land grants 
before the United States 
Courts, 25 
Third Republic, 72 
Tisdel, Mr., 212, 231 
Todd, Alpheus, 64 
on powers over the King in 
council, over the colonies and 
dependencies, 65-67 
on judicial powers given by the 
British Constitution to the 


375 


Crown, so far as the supreme 
jurisdiction in cases arising 
in colonies and dependencies, 
and vested in a privy council, 


67 

Togoland, 167 

Toro, 54 

Treaties of protection, with chiefs 
of the aborigines, 86-87 

Treaty of Paris, 148 

Treaty with the United States 
and Russia, 207 

Treaty between the British Gov- 
ernment and Uganda, 208 

Treaty between the British Gov- 
ernment and Portugal, recog- 
nizing Portugal’s claim in the 


Congo, 218 
Treaty of 1841, between France, 
Great Britain, Austria, 


Prussia and Russia, for sup- 
pression of slave trade, 157 

Triple Principle, establishment of, 
by action of International 
conferences in case of Mo- 
rocco, 336-363 

Triple Policy, 342-348 

Turkey, edict of the Sultan, 342- 
343, 348 


Uganda Protectorate, §3-55 
Uganda, British Protectorate of, 
126 
corporal punishment of the 
aborigines, 167 
law of, by Rolin, Henri, 169, 171 
treaty between the British 
Government and, 208 
United States, Declaration to 
Great Britain in favor of 
abolition of slave trade, 23 
Courts decision against corporal 
punishment of Indians and 
protection of property, person 
and life, 172 
power to punish sale of liquor 
to Indians, 46 
United States, jurisdiction of 
courts to punish crimes in the 
Indian territory, committed 
by members of the Indian 
tribes, by Chief Justice Taney, 


43 

statute making the murder of an 
Indian by another Indian on 
an Indian reservation, within 
the limits of the state or terri- 


376 


United States—Continued 


tory, a crime punishable by 


the United States court, 44, 
52 
Supreme Court Act prohibiting 
sale of liquor to Indians, 51 
United States, colonies and de- 
pendencies, power of Congress 
over, 56 
powers of the President over 
colonies and dependencies, 57 
United States, on the Northwest 
territory, 225-228 
declaration of, in Free State of 
the Congo, 233 
general policy, neutralization 
of the middle African Zone, 
257 
on Stanley’s explorations, 257 
on flag of the International 
Congo Association, 257 
I9th Congress report on the 
Congo Conference, 283-284 
ratification of African Act, 307 
sovereignty over Cuba, the 
Philippines, and Porto Rico, 
326 
proclamation to the Philippines, 
329-332 : 
Algeciras Act, ratified by, 353 
adhesion of, to Franco-German 
accord, 359-360 
Uyehara, G. E., Political Develop- 
ment of Japan, 83 


Index 


Venice, 86 
Vienna, Congress of, 223 
Treaty of British Government 
with, on abolition of slaves, 


149 

Treaty with France, on slave 
trade, 141-145 

Treaty of Great Britain with 
United States, 141 

Treaty with Portugal, 141 

Vienna, Declaration of Eight 

Courts, 148 


Wagener, Herman, as to the mean- 
ing of ‘‘protection or schutz, 
and trust in feudal law,”’ 111 

Waitange, Treaty of, 196, 199, 204 

War with Hereros and Hottentots, 
106 

Wards of the Nation, Indians 
treated as, 47 

Washington, 47 

Webster Dictionary, definition of 
aborigines, 5 

Wellington Valley, 41 

White, Chief Justice, on Downs 
v. Bidwell case, 328 


Zanzibar, International Bureau 
at, 304, 306 

Zimmermann, Alfred, History of 
the German Colonial Policy, 
107 


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